Nuances on Virtual Proceedings
Virtual proceedings may prove to be the beginning of the end for the application of the "best evidence rule."
February 28, 2022 at 12:00 PM
6 minute read
Virtual proceedings may prove to be the beginning of the end for the application of the "best evidence rule," as in Waldman v. Abt, 2021 N.Y. Misc. LEXIS 6534 (Kings Co. Civ. Ct. Dec. 21, 2021), where by definition virtual exhibits are not originals, but are scanned copies and, unless there is, for instance, fraud, a legitimate dispute as to why the document is missing, its authenticity or its completeness, sustaining an objection based on such rule may be elevating form over substance in the virtual context. Masking proved to be an obstacle to a hearing-impaired deponent in V.M. v. M.M., 2022 NYLJ LEXIS 65 (Kings Co. Sup. Ct. Jan. 24, 2022), resulting in a virtual deposition being ordered, but with procedures in place to ensure the witness would not be coached. The procedures ordered are similar to those included in new Commercial Division Rule 37 that was the subject of this author's January 3, 2022 NYLJ entitled New Rule on Taking Remote Depositions. Finally, in Perez v. 1857 Walton Realty, 2021 N.Y. Misc. LEXIS 1333 (Bronx Co. Civ. Ct. March 24, 2021), the court ordered a virtual trial where respondents did not offer a compelling reason to have an in-person trial as both sides were by represented by counsel and the court established processes to address evidentiary concerns.
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