Risk Update

Remote Work, Recordings & Records — New “Wrinkles,” Risks & Requirements

Remote Proceedings Bring New Wrinkles For Court Records” —

  • “Though the manner and extent of the use of live videoconferencing in federal civil proceedings have been varied in the courts that have ventured into the live-video arena, parties and courts using remote videoconferencing should carefully consider how they will preserve a clear record of the proceedings.”
  • “Will the videoconference be recorded? If so, can only the court and its staff record the proceedings? Can the parties or the public record the proceedings? If the court staff records the proceedings, will it become part of the official record?”
  • “The few federal district courts to address the question of recording videoconference-based proceedings appear to be adhering to a blanket prohibition on recording live video, mirroring the long-standing federal court ban on recording in-court proceedings.”
  • “Similarly, the U.S. District Court for the Northern District of Georgia has issued a standing order relating to the use of remote technologies during the COVID-19 pandemic, reiterating, ‘Persons receiving remote access to proceedings are prohibited from photographing, recording, and rebroadcasting court proceedings, including proceedings held by video teleconferencing or telephone conferencing.'”
  • “Under these prohibitions, the rules clearly appear to forbid the observing public, lawyers and parties from creating recordings of live videoconference.”
  • “Assuming video recording becomes part of the official record, what happens on appeal? If the current trend toward increased videoconferencing continues, will appellate courts come to require an official video record be submitted with the record on appeal? And, ultimately, will this trend lead appellate courts to undertake a less deferential review of fact finding, if a full video record of remote proceedings is available on appeal?”