Just before the July 4 holiday, Chief Judge Stark provided some much-anticipated guidance regarding the reinstatement of jury trials in the District of Delaware after the current moratorium expires on July 31, 2020.
In a July 2, 2020 order in Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-LPS-CJB, Judge Stark told the parties that he had spent "countless hours" meeting with experts and stakeholders about restarting jury trials in his capacity as Chief Judge, and that the Court was "undertaking extensive efforts to be ready to resume jury trials in August, if it is possible to do so safely." With that background, he outlined the details of how the jury trial in the Sunoco case will proceed on August 3, 2020.
The order details a number of requirements and restrictions for the jury trial in the Sunoco action, including the following:
- No in-person testimony: Although most of the witnesses were available to travel and testify in person, the Court issued the blanket "no live testimony" directive in the interest of fairness, to avoid pressure on witnesses to attend, and to make social distancing for in-person attendees easier.
- Limit on number of representatives in the courtroom: Each party will be limited to three or four representatives in the courtroom, with no "swapping out" allowed. At least one of the slots must be used by Delaware counsel. How to use the other slots was left up to the parties.
- Parties and Court staff to collaborate on IT issues: The parties were directed to work with Court staff to enable the partially remote trial, and to eliminate paper exhibits if possible.
- Court will simulcast a video of the proceedings: The simulcast room will be open to members of the public and the media, as well as members of the trial team.
- Trial counsel expected to take reasonable precautions: Trial counsel for the parties are expected to take steps to reduce risk to themselves and others, including perhaps "arriving in Delaware more than 14 days prior to the start of trial, self-quarantining, and developing strict internal procedures to maintain trial-team bubbles."
- Work on jury specifics continues: Judge Stark noted that he is working with a "District-wide committee to develop protocols for jury selection and for allowing the jury, Court staff, and counsel to interact safely in the courtroom." He said the parties can expect additional specific guidance in the coming weeks.
Two additional points are worth noting: First, Judge Stark explained this his order is not policy, but is specific to the Sunoco case. While that may be true, it is required reading for anyone expecting to participate in a jury trial in 2020 (and possibly beyond) in this District. Second, jury trials are not technically permitted until the District enters Phase II of its reopening plan (discussed in a previous IPDE post). As Judge Stark acknowledges in a footnote, the key requirement for entering Phase II "is not met."
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