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Md. high court approves remote access rules

A lack of protection for structured settlements has ‘left open the ability of factoring [or purchasing] companies to take improper advantage of vulnerable recipients,’ says Alan M. Wilner, chairman of the Maryland Judiciary’s rules committee.(File photo)

Alan M. Wilner, chairman of the Maryland Judiciary’s rules committee, urged the adoption by the Court of Appeals of the new remote video participation rules for civil litigation. (File photo)

Maryland’s top court Wednesday approved the expanded use of remote video participation in civil litigation — particularly in district court and pretrial proceedings — and not just during the pandemic-compelled court closures but for all time.

By voice vote, the Court of Appeals adopted rules permitting preliminary evidentiary and non-evidentiary proceedings in district court to be conducted remotely, as has been allowed in circuit court proceedings since 2018. The new rules, which go into effect July 1, will permit magistrates, examiners and auditors in circuit court to hold proceedings remotely with the permission of the circuit’s administrative judge.

The rule will also allow depositions to be conducted by video conference in addition to the current permitted use of telephone. Federal civil procedure rules already allow the taking of depositions by remote video.

“This is the wave of the future in making good use of technology,” Court of Appeals Chief Judge Mary Ellen Barbera said at the voting session. The public meeting was conducted by remote video conference, with the seven judges in separate rooms, and livestreamed on the Maryland Judiciary’s web page.

The new rules also call for real-time audio streaming of civil proceedings to comply with the public’s right to observe or listen to court activities open to the public.

The Judiciary panel that proposed the rules rejected live videostreaming out of concern that the images could be nefariously altered and distributed, said Alan M. Wilner, who chairs the Standing Committee on Rules of Practice and Procedure. He told the high court that live videostreaming could be considered if and when technology is developed to prevent such alteration.

The Court of Appeals’ adoption of the rules came as the state’s trial courts move toward a return to full operations, including jury trials, on Oct. 5 following a summer of gradual resumptions of proceedings, including evictions, foreclosures and bench trials.

The authority to conduct proceedings remotely will be critical as pending cases resume and new litigation is filed, Wilner said in describing “the double avalanche of backed-up cases … and those that are about to be filed in the district and circuit courts.”

Though the pandemic emergency will pass, the move to remote proceedings will not as technology will continue to improve, Wilner said.

Remote video access to court proceedings necessitated by the health threat of COVID-19 has created an everlasting “expansion of access to justice” for those who cannot get to the courthouse or an attorney’s office, said Wilner, a retired Court of Appeals judge.

“These new procedures will likely evolve over time,” Wilner said, in explaining why the committee rejected a suggestion that the rules on remote proceedings expire after 12 months.

“Too much has gone into this to have a draconian one-year sunset,” he told the high court.

Also on Thursday, the Court of Appeals adopted rules calling for the expeditious consideration by trial and appellate courts of the eligibility of youngsters to apply for “special immigrant juvenile status” with the federal government, noting that time is of the essence to seek this protection from deportation which expires upon reaching age 21.

The rule’s adoption followed the high court’s decision last year that a Guatemalan immigrant was eligible to apply due to his parent’s abuse and neglect in his homeland — a ruling that overturned lower court decisions and was part of an emergency order issued less than a week before his 21st birthday.

Under federal immigration law, youngsters seeking SIJS status must be under age 21, unmarried and show that “reunification” with the parent in their homeland is “not viable due to abuse, neglect or abandonment or a similar basis under state law.”

The high court also adopted a rule permitting appeals to be filed electronically from decisions handed down in the three Maryland jurisdictions that do not yet have electronic filing at trial: Baltimore city and Montgomery and Prince George’s counties.

Having adopted rules regarding modern remote proceedings, Barbera alluded to the irony regarding the need for the high court’s seven far-flung judges to sign their approval.

“Do you have a court drone?” Wilner asked.

“That’s a court secret,” Barbera joked. “No, we don’t have a court drone.”

The chief judge then assigned the clerk’s office to gather the signatures.

 


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