19-23185-rdd Doc 294 Filed 06/09/20 Entered 06/09/20 16:20:59 Main Document
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`UNITED STATES BANKRUPTCY COURT
`SOUTHERN DISTRICT OF NEW YORK
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`In re
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`: Chapter 11
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`: Case No. 19-23185 (RDD)
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`Debtor.
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`Retrieval-Masters Creditors Bureau, Inc.,1
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`ORDER ESTABLISHING REMOTE EVIDENTIARY HEARING
`BEGINNING ON JUNE 18, 2020 IN CONNECTION WITH DEBTOR’S
`MOTION FOR ORDER PURSUANT TO CODE SECTION 105(A)
`COMPELLING PERFORMANCE OF CONDUENT STATE & LOCAL
`SOLUTIONS, LLC’S OBLIGATIONS UNDER STIPULATION
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`The Court having considered Retrieval-Masters Creditors Bureau, Inc.’s (the “Debtor”)
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`Motion for Order Pursuant to Code Section 105(a) Compelling Performance of Conduent State &
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`Local Solutions, LLC’s Obligations Under Stipulation and Order [Doc. No. 253] (the “Motion”),
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`Conduent State and Local Solutions, LLC’s Objection thereto [Doc. No. 272], the Debtor’s reply in
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`further support of the Motion [Doc. No. 275], and having held a non-evidentiary hearing on the
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`Motion on April 30, 2020; and the Court having determined that issues of fact identified in its bench
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`ruling at the April 30, 2020 hearing required adjudication, this Contested Matter is scheduled for an
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`evidentiary hearing on such issues beginning on June 18, 2020 (the “Trial”). Pursuant to Rule 43(a)
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`of the Federal Rules of Civil Procedure, made applicable here by Rule 9017 of the Federal Rules of
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`Bankruptcy Procedure, the current COVID-19 pandemic provides good cause in compelling
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`circumstances to allow this trial to be conducted remotely through the use of telephonic and video
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`conferencing solutions. Accordingly, pursuant to this Court’s General Order M-543 regarding the
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`The last four digits of the Debtor’s taxpayer identification number is 9495. As of November 1, 2019, the
`Debtor’s service address for purposes of this chapter 11 case is 200 Pemberwick Road, Greenwich, CT 06831.
`The Debtor also did business as American Medical Collection Agency.
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`COVID-19 pandemic, and after due deliberation, this Court adopts the following virtual hearing
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`procedures which provide appropriate safeguards in relation to the trial of this Contested Matter.
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`IT IS HEREBY ORDERED THAT:
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`1.
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`Telephonic and Videoconferencing Solutions. The Trial shall take place virtually
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`using both telephonic and videoconferencing solutions as set forth herein. The Court shall utilize
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`Zoom (for audio and video purposes. The Zoom link shall be provided by the Court to the list of
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`persons identified by the Parties as Zoom participants in accordance with Section 3 below. All
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`counsel that participate by Zoom shall participate in appropriate pre-Trial testing of Zoom as may be
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`required by this Court’s IT personnel.
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` 2. Prior Notice of Intent to Zoom. The Debtor’s counsel shall provide the Court with a list
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`of all (a) attorneys with their address, phone number and email address and their client’s name, and (b)
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`witnesses phone number and email address, who will participate in the Trial by Zoom by no later than
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`12:00 noon on June 10, 2020. All parties shall promptly cooperate with counsel for the Debtor to
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`provide such information. The Court will circulate the Zoom link to such persons participating by
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`Zoom prior to the Trial. Only the parties on such list shall be permitted to speak at the Trial.
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` Public, non-speaking attendance at the Trial by Zoom shall be limited to utilizing the dial-in
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`number provided on the designated hearing date of the Judge’s Public Hearing Calendar page which
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`can be found on the Court website (www.nysb.uscourts.gov/calendars-0).
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`2. Submission of Exhibits to Court. The Parties shall meet and agree to the
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`admissibility of as many of proposed exhibits proposed to be introduced at the Trial as they
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`reasonably can. The Parties shall jointly provide the Court with a list and copy of such exhibits to be
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`introduced at the trial (the “Joint Exhibit Book”) no later than 12:00 noon on June 12, 2020. Any
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`other exhibit or demonstrative that the Parties may use at Trial for any purpose, including for
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`rebuttal or impeachment, that is not included in the Joint Exhibit Book, must also be submitted by
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`the offering Party to the Court and by email to the other Parties in .pdf format, in each case no later
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`than seven (7) days prior to the Trial. The Parties may email the other Parties a secure link to
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`download the exhibits from an FTP or other file-sharing service. Exhibits intended to be used only
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`for impeachment purposes shall be submitted to the Court and by email to the other Parties
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`separately from all other exhibits in a .pdf folder conspicuously labeled “For Impeachment Purposes
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`Only.” They also shall be provided at such time in hard copy to the Remote Witness in a binder so
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`labeled. The Remote Witness shall not review the impeachment exhibits in this binder until he or
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`she is asked about it during their testimony.
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`3. Submission of Witness Declarations to the Court. The Parties shall submit an
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`affidavit or declaration on penalty of perjury of each witness who is appearing to testify no later than
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`June 15, 2020. The parties shall stipulate to the admissibility of the witness’s declaration in lieu of
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`direct examination. The witness will be available via Zoom for cross examination, confined to the
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`scope of the Declaration, and redirect examination, confined to the scope of the cross examination.
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`4. Remote Witness Testimony. Rule 43(a) of the Federal Rules of Civil Procedure,
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`made applicable by Rule 9017 of the Federal Rules of Bankruptcy Procedure, provides that for
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`“good cause in compelling circumstances” a witness may be permitted to testify by
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`contemporaneous transmission from a location other than the courtroom. Having found that good
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`cause in compelling circumstances exist here due to the COVID-19 pandemic, any witness called to
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`testify at the Trial shall testify by contemporaneous transmission from a different location than the
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`Courtroom (“Remote Witness”). All Remote Witnesses shall be sworn in over Zoom, and such
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`testimony will have the same effect and be binding upon the Remote Witness in the same manner as
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`if such Remote Witness was sworn in by the Court deputy in person in open court at the courthouse.
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`In the event that there is an error or malfunction with Zoom, the testimony shall proceed by dial-in
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`by using the telephone number provided in the Zoom dial-in invitation or another number to be
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`provided by the Court if that dial-in number also does not function properly. The Party offering the
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`Remote Witness shall be responsible for ensuring that the Zoom link, and all exhibits from all
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`Parties are supplied to the Remote Witness in hard copy prior to, or in the case of impeachment
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`exhibits, at, the Trial. No person other than counsel may be present in the room from which the
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`Remote Witness will testify during the testimony of the Remote Witness. While the Remote
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`Witness is testifying, he or she may not have in the room from which the Remote Witness will
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`testify any documents except his or her declaration submitted in lieu of direct testimony and all
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`exhibits from all parties submitted to the Court pursuant to Paragraph 4 above. Witnesses testifying
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`via Zoom shall utilize the Zoom link only during the time they are testifying. Upon the conclusion
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`of his or her testimony, the witness shall disconnect from the Zoom link.
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`5. Courtroom Formalities. Although being conducted using videoconferencing
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`solutions, the trial of the Contested Matter constitutes a court proceeding, and any recording other
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`than the official court version is prohibited. No Party may record images or sounds from any
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`location. The formalities of a courtroom must be observed. When called to testify, a Remote
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`Witness must situate himself or herself in such a manner as to be able to view the video screen and
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`be seen by the Court.
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`6. Retention of Jurisdiction. This Court retains jurisdiction with respect to all matters
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`arising from or related to this Order.
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`Dated: June 9, 2020
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`White Plains, New York
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`/s/Robert D. Drain
` THE HONORABLE ROBERT D. DRAIN
`UNITED STATES BANKRUPTCY COURT JUDGE
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