ALAMEDA - Honeywell’s writ of mandamus requesting remote litigation by Zoom be stayed due to technical limitations was denied without prejudice by the First Appellate District of the California Court of Appeals.
“Although petitioner raises serious concerns, at this point they are speculative rather than concrete,” wrote Justice P.J. Holmes in the July 14 decision. “We, therefore, decline to address them at this time.”
The ruling was issued on the same day that the virtual trial was scheduled to begin - though opening arguments via Zoom started on July 27.
The case was on emergency appeal from the Superior Court for the County of Alameda where Honeywell filed the emergency appeal after taking issue with an order requiring them to participate in a virtual trial.
“Even with the best of equipment, training and intentions, it simply is not possible to guarantee that jurors operating remotely will be engaged throughout trial without distraction,” wrote Andrea Russi, counsel for Honeywell, in the July 13 petition for writ of mandamus. “The trial court’s proposal in this complex asbestos case to conduct the entire trial virtually—with jurors 'attending' individually by Zoom on their smart phones, tablets, or laptops from wherever they may be—goes far beyond the bounds of any reasonable balance, sacrificing all semblance of fairness in the interest of moving full speed ahead to trial."
At the core of the underlying lawsuit is Honeywell defending itself against an asbestos claim filed in October 2019 by plaintiffs Ricardo and Elvia Ocampo who sued another 12 defendant companies over Ricardo Ocampo’s diagnoses of mesothelioma.
On July 7, the lower court issued an order stating the following guidelines for the virtual trial:
- Jurors will attend trial remotely unless they are not able to do so.
- Only if jurors lack equipment or “a locale where they can provide undivided attention to the case,” will they “appear ‘live.’"
- The jury will deliberate together in a separate space, likely an empty courtroom, that allows sufficient social distancing. However, the court reserves the option to permit the jury to deliberate remotely if the jurors choose to do so.
“Some courts have thoughtfully concluded that resources and protocols have not yet been developed to move forward with civil trials, opting therefore to continue civil jury trials temporarily, at least until the current surge in COVID-19 cases subsides,” Russi wrote in Honeywell's brief. “Just last Friday, on July 10, the Los Angeles County Superior Court announced that it will not proceed with civil jury trials until next year. Other courts have attempted to hold trials, often with the agreement of the parties, by adopting social distancing measures, including having jurors and other participants wear protective gear, erecting plexiglass barriers, and limiting the number of people present in courtrooms. These measures create challenges that in themselves threaten the truth-finding process, but at least they still allow for jury participation in person, in the courtroom.”
Honeywell, through counsel, declined to comment.