Bankruptcy Courts and the Post-Pandemic Use of Courtroom Audio- and Videoconferencing Technology

Pre-COVID Practices

Before the pandemic, bankruptcy courts routinely conducted non-evidentiary hearings in person, by telephone, or using remote video technology. While less common, bankruptcy courts also conducted evidentiary hearings and trials where some or all of the proceedings utilized remote video or audio technology. For example, in geographically large districts with one or two bankruptcy judges, bankruptcy courts routinely used a video feed from another courthouse or other designated location to conduct evidentiary and non-evidentiary hearings with some or all the parties appearing remotely. In large Chapter 11 cases, which may involve dozens or even hundreds of interested parties, bankruptcy courts often permit telephonic appearances for parties in interest to participate in non-evidentiary hearings and to observe evidentiary hearings.

Established pre-pandemic JCUS policy allowed bankruptcy judges and other federal judges to approve remote participation at hearings by parties in interest for the “purposes of judicial administration” with appropriate protections. JCUS commentary explains that the policy “authorizes a trial judge to make use of electronic means for other purposes of judicial administration. This is intended to provide the necessary flexibility for experimentation with new uses of technology so long as those uses directly assist the judge and other judicial personnel in the performance of their official responsibilities.” Further, as with other federal courts, where parties made an appropriate showing under Fed. R. Civ. P. 43, bankruptcy courts allowed remote testimony at trials and other evidentiary hearings.

Prior to the pandemic, with limited exceptions, JCUS policies prohibited public “broadcasting” of any civil proceedings by any means. This meant that, even where bankruptcy courts permitted parties in interest to participate in hearings remotely, those courts could not allow remote public access to those hearings. Further, because JCUS policies permitted circuit courts of appeal to enter orders regarding practice within their respective circuits, some Circuit Judicial Councils adopted policies prohibiting remote participation in any proceedings even by parties in interest.

Pandemic Changes to Conduct of Bankruptcy Court Proceedings

When COVID struck, the president declared a national state of emergency. In response to this declaration, most bankruptcy courts initially closed their doors to the public except for matters that required urgent in-person hearings and shifted to conducting non-evidentiary hearings primarily by telephone. On March 27, 2020, Congress passed the CARES Act, which became law shortly thereafter. This legislation contained detailed provisions with respect to the federal judiciary, including an authorization to use videoconferencing or telephonic conferencing in certain criminal proceedings. Thereafter, the Executive Committee of the JCUS (acting on behalf of the JCUS on an expedited basis) approved a temporary exception to the existing policy to allow federal judges to use teleconferencing technology to provide the public and media audio access to court proceedings because public access to courthouses was restricted due to health and safety concerns during the pandemic. Very quickly, bankruptcy courts began evaluating various types of videoconferencing technology—including Zoom for Government, Cisco Meeting, Microsoft Teams, ATT Connect, WebEx, and Skype for Business—for use in conducting evidentiary and non-evidentiary hearings and trials and to provide the public and media with remote audio access to those proceedings via those platforms or other teleconferencing technology such as CourtCall and CourtSolutions.

With this change in place, during the thick of the pandemic, bankruptcy courts largely conducted their court proceedings, both hearings and trials, remotely. Judges commonly conducted court from their homes, empty courtrooms, chambers, and other locations. Courtroom deputies and recording officers operated remotely and from courthouses. Bankruptcy courts principally (but not uniformly) turned to Zoom for Government as the platform used to conduct video hearings and trials with remote public access.

On April 10, 2023, President Biden announced the end of the U.S. government’s COVID emergency measures. On May 24, 2023, the JCUS declared that emergency conditions no longer materially affected the federal courts. This triggered a 120-day window for federal courts to return to the pre-pandemic status quo with respect to transmitting civil proceedings to the public or for the JCUS to implement new policies addressing courtroom use of remote technology.

Post-Pandemic Use of Videoconferencing Technology in Bankruptcy Courtrooms

As in-person operations ramped up after the emergency measures ended, bankruptcy courts took a flexible approach, continuing to use audio- and videoconferencing technology to conduct proceedings and provide remote public access in some circumstances. As a practical matter, this meant that many courts continued to handle matters as they had after the enactment of the CARES Act and the adoption of the temporary policy exceptions that authorized courts to provide remote public audio access to proceedings. While Circuit Councils still had the authority to limit remote proceedings within their Circuits, it appears that few if any Circuits have instituted or enforced policies more restrictive than the JCUS policies. It is also clear that, while the pre-pandemic JCUS policies regarding remote party participation have not changed, more bankruptcy courts across the country are routinely utilizing remote video and audio technologies because of experience gained during the pandemic and, in some cases, because of changes to Circuit Council policies.

With respect to remote public access, there has been a significant change in policy, but it is yet to be seen how often that change will be utilized in practice in bankruptcy courts. In anticipation of the end of the emergency policies adopted during the pandemic, the JCUS Committee on Court Administration and Case Management (CACM) was tasked with formulating recommendations to the JCUS on the continued use of remote access technology in federal courtrooms, particularly as a means to provide public access. On September 12, 2023, the JCUS approved revised policies on broadcasting federal court civil proceedings to the public. The Guide to Judiciary Policy now provides in § 420:

(b) In addition, a judge presiding over a civil or bankruptcy non-trial proceeding may, in the judge’s discretion, authorize live remote public audio access to any portion of that proceeding in which a witness is not testifying. This policy does not create any right of any party or the public to live remote public audio access to any proceeding.

Consequently, federal courts may now authorize audio broadcasting to the public of non-trial proceedings where there will be no testimony, “[s]ubject to the Federal Rules of Practice and Procedure and any applicable statutes.”

Section 420 of the Guide to Judicial Policy establishes the following guardrails for broadcasting of civil proceedings:

(c) When broadcasting, televising, recording, or photographing in the courtroom or adjacent areas is permitted, a judge should ensure that it is done in a manner that will:

(1) be consistent with the rights of the parties;

(2) not unduly distract participants in the proceeding;

(3) include measures, consistent with the parties’ responsibilities, to safeguard confidential, sensitive, or otherwise protected information; and

(4) not otherwise interfere with the administration of justice.

The JCUS commentary to these sections provides useful guidance for federal judges:

1. The JCUS “remains of the view that it would not be appropriate to require all non-ceremonial proceedings to be subject to media broadcasting.”
2. The JCUS “policy does not permit the taking of photographs and radio and television coverage of court proceedings in the United States district [and bankruptcy] courts.”
3. The JCUS “has assigned a supervisory role to the circuit councils. Circuit councils are urged to adopt orders under 28 U.S.C. § 332(d)(1).”
4. A “circuit council may elect to establish guidelines, or require pre-clearance, for such permitted uses of cameras and other electronic means in the courts of its circuit.”
5. As noted above, the policy statement “also authorizes a trial judge to make use of electronic means for other purposes of judicial administration,” which is “intended to provide the necessary flexibility for experimentation with new uses of technology so long as those uses directly assist the judge and other judicial personnel in the performance of their official responsibilities.”

Conclusion

Bankruptcy courts continue to use audio- and videoconferencing technology to conduct hearings and trials after the pandemic, and the use of these technologies appears to be more widespread than before the pandemic. It also appears that, after gaining experience during the pandemic, bankruptcy courts are using these technologies in different ways. For example, the use of videoconferencing platforms such as Zoom and Teams that allow parties to participate in hearings and trials remotely from a place that they choose when authorized by the judge has largely replaced the use of video links to remote courtrooms or other locations where parties would have to appear in person.

Bankruptcy judges continue to discuss and debate the benefits and issues with remote hearings and the best practices for remote participation in hearings. Many judges recognize the efficiency and cost savings in some cases, ranging from first-day hearings in large Chapter 11 cases to routine hearings in consumer cases where an individual debtor may participate remotely and not miss time at work. Bankruptcy judges appear to widely agree that courtroom experiences between March 2020 and September 2023 demonstrate that judicial administration sometimes demands technological solutions that enable parties in interest and their lawyers to fairly and cost-effectively participate in court proceedings remotely when deemed appropriate by the court. Appearances by parties may, of course, still be by personal attendance in the courtroom, but increasingly parties appear via audio- or videoconferencing technology. Significantly, federal judges have the discretion to permit remote audio broadcasting to the public when deemed appropriate for non-trial proceedings where there will be no testimony, but it is likely that in most proceedings, public access will be by attendance in the courtroom.

Notably, Rule 43(a) has not been revised. In bankruptcy trials and evidentiary proceedings, witnesses must still provide testimony in person in open court unless the bankruptcy judge rules “for good cause in compelling circumstances” that a witness may testify via video technology. While the Advisory Committee notes to Rule 43 state that “[g]ood cause and compelling circumstances may be established with relative ease if all parties agree that testimony should be presented by transmission,” determining whether “all parties agree” may be more difficult in some contested matters in bankruptcy cases. For example, emergency evidentiary hearings on short notice for “first-day” orders in large Chapter 11 cases may involve many parties in interest. Bankruptcy judges require an evidentiary record to make certain immediate rulings in those cases. If a party in interest strategically objects to remote testimony being proffered, a bankruptcy judge would have to find other compelling circumstances to permit remote testimony.

In many ways, bankruptcy courts continue to be at the forefront of the use of technology in conducting judicial proceedings. For example, in 2022, noting the experience of bankruptcy courts during the pandemic, the National Bankruptcy Conference (NBC), a private organization of bankruptcy practitioners, academics, and judges, submitted to the JCUS Advisory Committee on Bankruptcy Rules a suggestion to amend two of the Federal Rules of Bankruptcy Procedure (Rules 9014 and 9017) and to adopt a new rule (Rule 7043), with the goal of providing bankruptcy courts greater flexibility to authorize remote testimony in “contested matters.” Many evidentiary proceedings within a bankruptcy case are in the context of “contested matters,” including approval of the use of cash collateral, determining violations of the automatic stay, and considering confirmation of plans of reorganization. Only certain specific matters require the commencement of an “adversary proceeding,” which involves named plaintiffs and defendants and has a track akin to a traditional civil action. In practice, contested matters can be complex, requiring days or weeks of evidentiary hearings often resembling trials in adversary proceedings. The NBC suggestion would retain the current standard under Rule 43 of the Federal Rules of Civil Procedure for remote testimony in adversary proceedings. The NBC suggestion is being considered by the JCUS Advisory Committee on Bankruptcy Rules, but even if that committee determined that a rules change was advisable, the path to adoption by the JCUS and implementation would take years.

Bankruptcy courts and other federal courts will be pressed to consider the impact of remote access technology on their proceedings and in the application of the rules governing procedure and evidence. In 2023, a bankruptcy court ruled that because Rule 43(a) permitted a non-party witness’s remote testimony, that witness could be compelled by subpoena to testify remotely from the Virgin Islands, where the witness lived, notwithstanding the limitations on the subpoena power of the court in Fed. R. Civ. P. 45(c). The bankruptcy court specifically noted its positive experiences with remote testimony during the pandemic and found that the witness’s refusal to testify at trial and the importance of the witness’s testimony constituted compelling circumstances and good cause under Rule 43(a); because the location of the compelled testimony was in the Virgin Islands, the court ruled that the Virgin Islands was the location of trial for purposes of Rule 45. The Court of Appeals for the Ninth Circuit disagreed and issued a writ of mandamus, noting that “[p]erhaps one could argue that the ‘place’ of trial, like other proceedings, is changing with modern technology,” but it is in the province of the Rules Committee to consider amendment of the procedural rules to address those issues.

In post-pandemic proceedings, bankruptcy courts and other federal courts will continue to balance increased access and efficiencies afforded by audio- and videoconferencing technologies with the administration of justice and the truth-finding role of the courts. No two cases are the same, and circumstances may differ even within the same case or trial. The role of the court will be critical to determine when and how these technologies may be used in the efficient administration of cases before them.