Last week, Chief Judge McMahon scheduled what appears to be the first remote trial to be held in the Southern District during the COVID-19 pandemic. The trial will commence on July 6, 2020 in Ferring Pharmaceuticals v. Serenity Pharmaceuticals, a patent dispute involving drugs used to treat the condition nocturia (a form of waking during the night).
Judge McMahon considered several issues that counseled in favor of a remote trial:
The decision to go “all remote” became a no-brainer when I reviewed our draft protocols for Phase II Re-entry with the court’s senior staff. Under the protocols we are adopting, individuals who have traveled abroad in the preceding two weeks will not be permitted to enter the courthouse. We have five or six witnesses – about half of our witnesses, and all but one non-expert – who would be travelling in from Europe. Putting to the side the issue of whether they could get into the United States at all – which just introduces uncertainty in a situation where no more is needed – they would have to arrive in New York by June 22 so they could quarantine or two weeks before we would allow them into the courthouse. At some point, this just gets silly. Given all the constraints we face, 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.
Judge McMahon left open the possibility that the lawyers might appear in person in Judge McMahon’s courtroom and question witnesses from there – the parties were instructed to meet and confer and agree that all lawyers would either appear remotely or in person.