The State of New York Ex Rel Vinod Khurana et al v. Spherion Corp

Filing 228

ORDER ESTABLISHING REMOTE BENCH TRIAL PROCEDURES FOR THE TRIAL OF COUNTS III AND IV: IT IS HEREBY ORDERED THAT: 1. This Order shall supplement and not supersede the Court's (a) prior Orders setting trial-related procedures and deadlines, (b ) Individual Rules and Practices, and (c) Emergency Individual Rules and Practices, all of which remain in effect unless expressly stated herein to the contrary. The Trial shall take place using both telephonic and videoconferencing solutions as set forth herein. This case will be tried to the Court without a jury and entirely by remote means utilizing the TRIALanywhere Zoom platform ("Zoom"), which will be hosted by independent third-party vendor Trialgraphix. The public will b e able to observe the trial via an audio-only dial-in number that will be provided on the docket. The Court shall provide the Zoom link to the persons whom the parties identified as Zoom participants according to paragraph 3 below. All counsel and witnesses to participate via Zoom shall participate in appropriate pre-Trial testing of Zoom as may be directed by the Court. During the course of the trial, witnesses appearing via Zoom shall use the Zoom link provided by the Court only at the tim e they are testifying. Although being conducted by use of telephonic and videoconferencing solutions, the Trial constitutes a court proceeding, and any recording other than the official court version is prohibited. No party may record images or sou nds from any location. The formalities of a courtroom must be observed. When called to testify, a witness must situate himself or herself in such a manner as to be able to view the video screen and be seen by the Court. On October 21, 2020, at 2:0 0 p.m., all counsel who will participate in the trial, along with Court personnel, shall participate in appropriate pre-trial technology testing. The parties should be prepared to discuss this testing at the final pretrial conference scheduled for October 19, 2020. This Order shall be subject to a material change in circumstances that might arise, particularly with respect to the COVID-19 pandemic. (And as further set forth herein.) (Signed by Judge Jesse M. Furman on 10/5/2020) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

THE STATE OF NEW YORK EX REL. VINOD
KHURANA and THE CITY OF NEW YORK EX
REL. VINOD KHURANA,

Case No. 15-CV-6605 (JMF)

Plaintiffs,
v.

SPHERION CORP. (N/K/A SFN GROUP, INC.),
Defendant.

ORDER ESTABLISHING REMOTE BENCH TRIAL PROCEDURES
FOR THE TRIAL OF COUNTS III AND IV
Counts III and IV in this action are scheduled for a bench trial to begin on October 26,
2020. See ECF No. 227. Pursuant to Rule 43(a) of the Federal Rules of Civil Procedure and the
Standing Orders in this District concerning the current COVID-19 pandemic, the pandemic
provides good cause in compelling circumstances to allow this Trial to be conducted remotely
(from locations other than the courtroom) through the use of telephonic and videoconferencing
solutions. Accordingly, pursuant to this Court’s June 29, 2020 Order, ECF No. 194, and after
due deliberation, this Court adopts the following Trial procedures as appropriate safeguards for
the Trial.
IT IS HEREBY ORDERED THAT:
1.

Prior Orders and Individual Practices. This Order shall supplement and not

supersede the Court’s (a) prior Orders setting trial-related procedures and deadlines, (b)

Individual Rules and Practices, and (c) Emergency Individual Rules and Practices, all of which
remain in effect unless expressly stated herein to the contrary.
2.

Telephonic and Videoconferencing Solutions. The Trial shall take place using

both telephonic and videoconferencing solutions as set forth herein. This case will be tried to the
Court without a jury and entirely by remote means utilizing the TRIALanywhere Zoom platform
(“Zoom”), which will be hosted by independent third-party vendor Trialgraphix. The public will
be able to observe the trial via an audio-only dial-in number that will be provided on the docket.
The Court shall provide the Zoom link to the persons whom the parties identified as Zoom
participants according to paragraph 3 below. All counsel and witnesses to participate via Zoom
shall participate in appropriate pre-Trial testing of Zoom as may be directed by the Court.
During the course of the trial, witnesses appearing via Zoom shall use the Zoom link provided by
the Court only at the time they are testifying.
3.

Prior Notice of Intent to Zoom. The parties shall provide the Court with a list of

the names of all attorneys and witnesses who will attend the Trial via Zoom by no later than five
(5) business days before the pre-Trial testing referenced in Paragraph 2. For witnesses, the party
offering the witness shall be responsible for ensuring that the witness is given the appropriate
Zoom link.
4.

Exhibits Not Included in the Exhibit List. Any exhibit or demonstrative that

(i) the parties intend to use at Trial for any purpose other than solely for impeachment and that
(ii) was not included in the parties’ exhibit list submitted with the Pre-Trial Order must be
submitted via email by the offering party to the Court (at
[e-mail]) and the other parties in .pdf format no later than

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four (4) business days before the Trial. The Court reserves judgment on whether any such
exhibit may be used at trial.
5.

Use of Exhibits at Trial: Hardcopies. Each party shall send the exhibits that it

intends to use as part of its direct examination of each adverse witness, or for cross-examination
of each witness, in the following manner. The Court will be provided via email a folder
containing electronic copies of the exhibits and bearing the witness’s name at least two (2) days
before the witness is called to testify. Opposing counsel will be sent two sealed binders
containing identical, hardcopy sets of the exhibits (the “witness binders”) two (2) days before the
witness is called to testify. The witness will be provided with a single witness binder to arrive at
least three (3) days before the witness is called to testify. Neither the witnesses nor opposing
counsel shall unseal the witness binders and review the exhibits prior to the Court instructing
them to do so at the start of the witness’s examination. In the event that counsel wishes to use an
exhibit during his or her examination that has not been previously provided pursuant to the
instructions set forth in this paragraph, counsel shall notify the Court and opposing party as soon
as practicable, and the matter shall be addressed in conference on the morning of the day that the
witness is to be called to testify.
6.

Use of Exhibits at Trial: Electronic Copies. Notwithstanding Paragraph 5

above, if providing a witness with a hardcopy binder of exhibits prior to trial would be
impracticable – for example, if the witnesses is residing outside of the United States – a party
may instead provide that witness and opposing counsel with a password protected, electronic file
of exhibits via email. A party’s distribution of such electronic file shall follow the same
schedule set forth in paragraph 5. Immediately prior to the commencement of the witness’s

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examination, the examining party will provide opposing counsel and the witness with the
password to access the exhibits.
7.

Exhibits Solely for Impeachment. Because cross-examination is fluid and its

contours cannot always be predicted, this Order is not intended to preclude a party from using an
exhibit for cross-examination purposes that was not provided pursuant to the instructions set
forth in paragraph 5 or 6 if that exhibit becomes relevant due to the testimony elicited during the
witness’s direct testimony (if the witness did not submit a declaration) or during the course of
cross-examination. Such exhibits will be first emailed to the Court and opposing counsel
immediately prior to being shown to the witness. Once approved by the Court, the exhibit may
then be published to the witness electronically.
8.

Substantive Exhibits and Declarations in Lieu of Direct Testimony. The

parties shall email and mail the Declaration that they submit in lieu of direct testimony to the
respective affiant, as well as any substantive exhibits cited in the Declaration, such that they are
delivered to the witnesses at least three (3) business days before the first day of trial.
9.

Witness Testimony. Rule 43(a) of the Federal Rules of Civil Procedure provides

that for “good cause in compelling circumstances,” a witness may be permitted to testify by
contemporaneous transmission from a location other than the courtroom. Having found that
good cause in compelling circumstances exist here due to the COVID-19 pandemic, any witness
called to testify at the Trial shall testify by contemporaneous transmission from a location other
than the Courtroom. All witnesses shall be sworn in over Zoom, and their testimony will have
the same effect and bind themselves in the same manner as if they were sworn in by the Court
deputy in person in open court at the courthouse. The party that submitted an
affidavit/declaration for, or served a subpoena to testify at trial on, a witness shall be responsible

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for ensuring that the witness (a) has received the Zoom link from the Court; and (b) has been
registered with Zoom. No person may be present in the room where the witness testifies during
that witness’s testimony except for that witness’s counsel (if any), who may only interpose
lawful objections to questions posed by an examining attorney and may not confer with the
witness during the examination of that witness. No person may be in communication with any
witness during the witness’s examination except for the Court and the examining attorneys. No
documents may be in the room where the witness testifies during the witness’s examination
except for the witness’s affidavit in lieu of direct testimony and all exhibits that all parties
submitted to the Court. The testifying witness and the party that submitted the witness’s
declaration (if any) shall be responsible for ensuring that the witness has a stable audio and video
connection throughout the witness’s examinations. Upon the third occurrence of a loss of audio
and/or video during the same witness’s examination, the Court will consider adjourning the
witness’s examination until the Court is assured that the witness’s audio and video will function
properly. In the event that there is an error or malfunction with remote technology, the Court
may order that the testimony proceed by dial-in using a telephone number provided by the Court.
Upon the conclusion of his or her testimony, the witness shall disconnect from the link.
10.

Post-Trial Submissions. Paragraph 3 of this Court’s June 12, 2020 Order, ECF

No. 192, which advises the parties that “there may be no opportunity for post-trial submissions,”
does not apply to the Court’s award of reasonable fees and costs if a verdict is rendered in
Plaintiff’s favor. That determination will be made following post-trial submissions and a posttrial hearing if deemed necessary in the Court’s discretion.
11.

Courtroom Formalities. Although being conducted by use of telephonic and

videoconferencing solutions, the Trial constitutes a court proceeding, and any recording other

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