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Remote courtroom proceedings and virtual trials are our new reality for the foreseeable future, as courts in New Jersey and elsewhere begin the process of reopening and tackling backlogs created by the COVID-19 pandemic. While the whole world seems to have changed in the space of a couple of months, one thing that hasn't changed is the importance of ensuring that a client's confidential information doesn't fall into the wrong hands.

The COVID-19 public health crisis—which has shuttered courthouse doors in New Jersey and across the country—is causing courts and lawyers to embrace technology, including live-streaming court proceedings; video-conferencing with judges, litigants and witnesses; and even virtual trials. This situation has created entirely new challenges for attorneys who must zealously represent their clients in a public forum that is far more public than ever before.

Both New Jersey state and federal courts recognize a presumptive right of public access to court proceedings, and require good cause to seal documents or close a courtroom from the public. Recently, in In re Avandia, 924 F.3d 662, 672 (3d Cir. 2019), the Third Circuit clarified that the standard for sealing publicly filed documents is more stringent than the standard for entering a protective order, and held that a party who wishes to file documents under seal must show "compelling, countervailing interests to be protected" that outweigh the presumptive public right of access.

Against this backdrop, both the state and federal courts in New Jersey are beginning to live-stream court proceedings due to the COVID-19 pandemic. While the public's presumptive right of access to the courts should not be restricted because of the health crisis, the live-streaming of court proceedings presents new challenges to an attorney's ability to safeguard his or her client's confidential information.

The federal courthouses in New Jersey are all currently closed, and the District of New Jersey website has a page entitled "Remotely Attending Public Hearings," in which very brief instructions are provided: "In order [for a member of the public] to remotely attend a public hearing conducted by audio or video teleconference" an individual may send an email to the court with his or her request, and in response the court will send the individual a form with rules and instructions for attending the public hearing. See D.N.J. Standing Orders Nos. 2020-05 (Mar. 26, 2020) and 2020-09 (Apr. 17, 2020) (available at https://www.njd.uscourts.gov/covid-19-orders-procedures-and-changes), and D.N.J. Instructions for Remotely Attending Public Hearing (available at https://www.njd.uscourts.gov/remotely-attending-public-hearings).

The instructions on the District of New Jersey website provide no detail as to who will be deciding whether to grant access to an individual's request or what standard will govern the granting of such a request. Will it be analogous to an Avandia analysis in which the public's presumptive right of access will be given precedence? How can a party challenge an individual's request if the party does not know that the request has been made?

There are many different scenarios where highly confidential and extremely sensitive competitive information is discussed during hearings, jury trials, and other court proceedings. Further complicating matters is the fact that for the foreseeable future, counsel, witnesses, court reporters, the judge, and potentially jurors, will likely be participating remotely. If the proceeding is being live-streamed—as it presumably will be, since such hearings are normally open to the public—attorneys will have to request that the live-stream be turned off whenever confidential information is to be discussed, just as they would request that the courtroom be sealed temporarily. In addition, attorneys often speak with their clients or approach the bench to speak with the Judge privately during a hearing or trial. These interactions are not usually treated as part of the formal court record. Livestreaming these proceedings may inadvertently pick up these traditionally private conversations and share them with unintended audiences.

The Administrative Office of the New Jersey Courts recently issued its own guidance regarding virtual court proceedings. Directive #12-20, sets forth detailed "Principles and Protocols for Virtual Court Operations During the COVID-19 Coronavirus Pandemic." See New Jersey Courts Directive #12-20 (Apr. 27, 2020) (available at https://njcourts.gov/public/covid19.html). The overarching principle set forth in this directive is that the majority of Superior Court matters, including those in Civil Division, General Equity, and Special Civil Part, "will not be livestreamed, absent a showing of good cause in a particular matter, with the judge to make that determination." Id. The directive also provides that members of the public and the media "may request real-time access to observe events that are not livestreamed but are not proscribed from public access," to be determined by the court. Id. Still, despite the admirable level of detail in the New Jersey Courts Directive, many of the same questions persist as with the District of New Jersey's live-streaming protocols.

Finally, although both the state and federal courts in New Jersey are reminding requestors that they must abide by the standing prohibitions against video- and audio-recording and dissemination of court proceedings, it is unknown whether there are any policing mechanisms in place with respect to live-streamed court events.

Addressing the confidentiality issues associated with remote simultaneous broadcasting of court proceedings places an increased burden on attorneys to be more vigilant than ever in safeguarding their clients' confidential information. Among other things, attorneys should consider entering into new or amended joint confidentiality orders (or unilaterally seek a protective orders) for existing cases that take into consideration the concerns outlined above. Before commencing any hearing or other proceeding, counsel should confirm whether it is being livestreamed and endeavor to find out who will be watching or listening, if possible. Counsel will need to be cognizant at all times that the audience for any particular proceeding may be much larger than it appears and tailor the presentation accordingly. Counsel will also need to be extremely careful about requesting the termination of any livestreaming before eliciting testimony about confidential or competitive information and/or introducing documentary evidence that touches on such subjects.

As attorneys, judges, jurors, and the public enter into this brave new world of virtual litigation— which appears to be here to stay—we cannot afford to lose sight of the privacy principles that have always guided proceedings in the courts, the public's presumptive right of access notwithstanding. No doubt there will be technology glitches and unintended confidentiality breaches along the way, but we must all do our best to keep these to a minimum in order to ensure that litigants can have their day in court without sacrificing all manner of privacy, while at the same time balancing this against the public's right of access to the courts.

Theodora McCormick is a member of Epstein Becker Green, in the Litigation and Health Care & Life Sciences practices, in the firm's Princeton and Newark offices. Robert Lufrano is an associate in the Litigation & Business Disputes practice, in Epstein Becker Green's Princeton office.