United States: COVID-19 Related Updates To Bankruptcy Courtroom Policies And Procedures

Most bankruptcy courts have altered their practices and procedures in light of COVID-19.  Below is a summary of some of the changes to practices and procedures in the United States Bankruptcy Courts for the Southern District of New York, the Eastern District of New York, and the District of Delaware.  Given the fluidity of the situation and the frequency of COVID-19-related updates, please also consult the relevant court's website. 

United States Bankruptcy Court for the Southern District of New York

On March 20, 2020, the Bankruptcy Court issued General Order M-543, which provides that: ¹

1. All hearings and conferences scheduled for the Manhattan, White Plains, and Poughkeepsie Divisions of the Bankruptcy Court will be held telephonically, and parties interested in appearing in person should file or submit an appropriate motion or request.  Parties can request adjournments of hearings or conferences by filing a motion or request detailing the request and basis, as per the Bankruptcy judge's procedures for requesting adjournments.  Anyone intending to appear at or attend a telephonic hearing or conference must refer to the Bankruptcy judge's guidelines for telephonic appearances and use Court Solutions LLC.  The telephonic service is free of charge for pro se parties and chapter 7 and 13 trustees. 
2. Parties should contact their individual Bankruptcy judge or courtroom deputy/law clerk to determine whether upcoming evidentiary hearings and trials will proceed as planned, and to discuss procedures and technology to be used at the evidentiary hearing.  Methods for contacting the judge or deputies may vary by judge (i.e., phone call or email).  
3. Bankruptcy Court personnel will be using tools available through Court Solutions to record telephonic hearings, conferences, and trials.  Those recordings will be the official record.  Transcripts can be ordered and corrected as they were before General Order M-543.
4. The Bankruptcy Court's three Divisions are still open for all other business.  "Clerk's Office personnel are available by telephone, mail will be received, and the intake desks will remain open to receive  pro se filings." 
5. Information about using CourtSolutions can be found here. 

Other relevant COVID-19 developments include:

• As of May 11, 2020, per General Order M-548, the Court "may waive the PACER Fees for pro se parties to a case or proceeding who certify that he/she is indigent and having to pay the PACER Fees would cause an unreasonable burden" ².  To obtain the waiver, applicants "must contact the Clerk's Office by either calling (212) 284-4040 between the hours of 8:30 a.m. and 5:00 p.m. or emailing CourtServices@nysb.uscourts.gov." ³ Recipients of the waiver may only use the PACER account for "activities relating to the prosecution or litigation of the case or adversary proceeding to which he/she is a party". ⁴ They "may not sell or transfer any data received from the fee-exempt PACER account unless expressly authorized" ⁵ and the access is granted for a limited time, and may be revoked by the Court in its discretion. 
• On April 23, 2020, the Court implemented General Order M-546, which adopts temporary amendments to Interim Rule 1020 to account for the CARES Act.  The change adds a new definition of 'debtor' for eligibility purposes for proceeding under subchapter V of chapter 11.  The amendment terminates one year after the date of the enactment of the CARES Act. ⁶ Per General Order M-542, signed on March 17, 2020, while the Court remains open for business, access to the Bankruptcy Court building will be restricted to types of persons listed in the order. ⁷

United States Bankruptcy Court for the Eastern District of New York

In the Bankruptcy Court for the Eastern District of New York:

• All hearings will be held by phone and recorded by the Court until further notice.  Other recordings of those telephonic hearings may not be made. ⁸ The Court uses Cisco WebEx and provides detailed instructions for use here. 
• For more guidance on procedures for participating in telephonic hearings, please check the individual judge's COVID-19 national emergency procedures, available here on the left-hand side. ⁹
• Where necessary, PDF documents can be sent to the Court at NYEB_Dropbox@nyeb.uscourts.gov .  The Court requests that you include your full name, address, phone number, and email address along with the papers so that the Court may contact you should it need additional information. ¹⁰
• For the duration of the National Emergency, cash will not be accepted for purposes of filing fees. ¹¹
• Pro se filers should use postal money orders or cashier's checks, made payable to Clerk, U.S. Bankruptcy Court, and should send their documents to the Court by mail.  Alternatively, they may send PDF documents to the Court's electronic drop box.  If a pro se filer must come to the courthouse, they should use the night depository located in the lobbies of the Brooklyn and Central Islip Courthouses during regular business hours.  Further, if the Clerk's Office is closed, papers that are not filed electronically can be filed by depositing them in the night depository in the courthouse lobby of the Court where the case is pending.  Documents submitted via night depository will be deemed as filed as of the exact time and date stamped on the papers. ¹²
• For telephonic 341 meetings of creditors, testifying debtors and counsel should call in promptly through the number and passcode made available on the docket three days before the meeting, remain on mute until the case is called, and ensure that the debtor has read the Bankruptcy Information Sheet before the meeting.  Debtors and counsel are also "required to email the trustees with an imaged copy of the debtor's photo identification and proof of the debtor's social security number."  These must be provided through a secure method, such as encrypted mail.  Following the telephonic meeting, a Declaration Regarding Administration of Oath and Confirmation of Identity and Social Security Number form should be completed. ¹³

United States Bankruptcy Court for the District of Delaware

On June 15, 2020, the District of Delaware issued and adopted Re-Opening Guidelines for a Gradual Return to Normalcy.  The plan consists of four phases: ¹⁴

• Phase One "involves the court's initial mergence from strict shelter-in-place orders";
• Phase Two is a "gradual loosening of restrictions";
• Phase Three is a "cautious return to normal court operations with an awareness of the need to provide reasonable accommodations"; and
• Phase Four constitutes "normal operations with no restrictions." 

The guidelines for each phase can be found in full here.  From mid-June to September 14, 2020, the District was in Phase One.  At the start of Phase One, the Bankruptcy Court issued an order governing the conduct of hearings.  That order, which took effect June 17, 2020, provided that:

• The Hand Deliveries Order remain in effect subject to the judge's discretion on a case-by-case basis;
• Court hearings are to be held "(i) telephonically, (ii) by a combination of telephonic and video conference, or (iii) on-site in a courtroom."  On-site hearings are held at the discretion of the presiding judge, and are limited to critical cases.  The presiding judge may also consider requests to change an on-site proceeding to a telephonic proceeding. 
• Entry to the Bankruptcy Court premises on the 5^th and 6^th floors of 824 North Market are conditioned upon compliance with provision 7(a)-(j) of the aforementioned order.  Notably, all persons must comply with the standing order regarding the use of face masks, complete a wellness questionnaire prior to arrival, and maintain social distance.  The presiding judge may supplement or amend these conditions, and access to the premises is limited to the specific categories of persons referenced in 7(c), (d) and (e).
• Presiding judges will determine the manner of submitting evidence on a case-by-case basis.
• L.R. 9029-3(b)(iii) is amended on an interim basis.  Where the presentation of live witnesses is expected, the party presenting should provide the identity and location of the witness, and note that they are presenting the witness.  Counsel submitting the agenda should consult with the parties to identify all witnessing being presented. 
• The Clerk's Office remains open to the public subject to paragraph seven of the order. 

As of September 15, 2020, the District of Delaware and the Bankruptcy Court for the District of Delaware transitioned to Phase Two.  Under Phase Two, Bankruptcy "Court hearings will continue to be conducted remotely unless otherwise ordered by the presiding judge" and "[a]ll other operations will continue remotely." ¹⁵  We recommend checking the Bankruptcy Court's website often for information regarding changes to procedures under Phase Two. 

Other COVID-19 related developments include:

• As of August 31, 2020, the Bankruptcy Court has implemented the following emergency Clerk's office procedures in light of COVID-19: ¹⁶
  • The Intake Counter of the Clerk's office is open Monday through Friday, 10:00 a.m. to 2:00 p.m.
  • Emergency bankruptcy petitions for individuals may be filed electronically through the link on the Court's website.  Documents may also be delivered to the court through the drop boxes located in the courthouse lobby.
  • CourtCall will record the telephonic hearings, and will constitute the official recording of those hearings.
• On August 14, 2020, the Bankruptcy Court entered an Order Regarding Service Pursuant to Del. Bankr. L.R. 5005-4 and 9036-1, which provides that: ¹⁷
  • The Rule 9036-1(b) courtesy copy must be delivered via email or other electronic means, not hard copy or other mail/deliver.
  • Electronic courtesy copies satisfy the requirements of Local Rule 9036-1(b).
  • Parties submitting orders listing other parties on whom objections should be served should not state that service has to be made by hard copy and should not list a physical mailing address.
  • Per Local Rule 5005-4(c)(iv), CM/ECF users should ensure that their email addresses are actively maintained, and should promptly update their account information should their email address change.  Email address information is made available in the CM/ECF system for the benefit of filers. 
  • This Order does not apply to leadings or papers served in accordance with Fed. R. Bankr. P. 7004 or "as provided in Local Rule 5004-4(c)(iii). 
• As of July 17, 2020, visitors to the Bankruptcy Court – "including vendors, contractors, litigants, attorneys, and other members of the public" – must wear a mask or face covering when interacting with Court staff and in common areas within the Court. ¹⁸ Judges may determine if and when masks or coverings may be removed. 
• As of June 1, 2020, all visitors to the 824 N. Market Street building must wear mandatory facial covering, adhere to the signage promoting social distancing, adhere to the elevator signage requesting no more than three individuals per cab and other social distancing signage, and should not enter the building if they display any symptoms of COVID-19. ¹⁹ 
• The Court has provided guidance on Zoom etiquette, available here.  For Zoom videoconferences, proper names should be used as screen IDs, and parties are encouraged to consider lighting and/or a virtual background when appearing from "a location that is not a business setting." ²⁰ The Court also instructs that parties should wear "court attire" and should turn video on if you or co-counsel intends to speak. 

Footnotes