N.C. R. Prac. Super. & Dist. Ct. 12.0
Although In-Person Hearings are presumed in civil Superior Court proceedings, counsel or unrepresented parties may request a Remote Hearing by providing a motion to the TCC at least five days before the hearing and serving the other attorneys and/or unrepresented parties with the motion. The motion shall describe the reason for the request, and the physical location(s) of the individual(s) while participating. Civil jury trials are not permitted to be conducted entirely remotely, except for witness testimony and jury management functions. Counsel of unrepresented party who wishes to request a Remote Hearing shall do so by filing the form entitled "Notice and Motion for Fully Remote Hearing/Hybrid Remote Hearing" (APPENDIX K). Any party to an action may object to another party's request for a Remote Hearing by filing the form entitled "Objection to Remote Hearing" (APPENDIX L) within 3 days of service of notice and motion.
Counsel and/or an unrepresented party may request a Hybrid Hearing by providing a motion to the TCC at least five days before the hearing and serving the other parties with the motion. The motion shall describe the reason for the request, the individuals who will appear in person, and for any individual appearing remotely, the physical location of that individual while participating and the individual's contact information. In addition, the party seeking the Hybrid Hearing shall certify that the remote individual is able to access the Hearing. Otherwise, the party shall propose a suitable alternate location. The Presiding Judge has the discretionary authority to conduct the hearing by Hybrid Hearing without the need to find good cause.
Consistent with G.S. § § 7A-95(c) and 7A-198(c), the Clerk of Superior Court, or the Clerk's designee, shall schedule and host WebEx proceedings in Civil Superior Court. When scheduling the hearing, the Host shall follow the naming convention for the WebEx hearing as stated in Rule 17.2 of the Rules of Recordkeeping promulgated by the Director of the North Carolina Administrative Office of the Courts. (NCAOC).
The Clerk of Superior Court may also designate one or more co-hosts, either judge(s) and/or the TCC, for each proceeding scheduled, as provided by G.S. § § 7A-95(c) and 7A-198(c). The Cohost is authorized to begin, conduct, and record the hearing if the Host is not available. Any recording will automatically be saved in the WebEx account of the Host.
The Clerk of Superior Court or TCC will send the WebEx link to attorneys of record and unrepresented litigants who have calendared cases. Each attorney or unrepresented party is responsible for providing the WebEx link to his or her client(s), witness(es), and other interested individuals, as applicable. Each WebEx link shall also be published on the court calendar. If a public access link (e.g., a YouTube link for live streaming) is provided that is separate from the WebEx link used by parties and witnesses, spectators/media should access the hearing via the public access link.
All attorneys and parties are encouraged to access the Remote Hearing or Hybrid Hearing at least 15 minutes prior to the scheduled start time of the hearing. The Presiding Judge shall have discretion to deny entry to a hearing if a party is not present at the appointed time.
Attorneys and unrepresented parties shall identify themselves before speaking. During a Remote Hearing or Hybrid Hearing, attorneys and parties who are not testifying or speaking should mute their microphones. The Host or co-Host reserves the right to "mute" a party, witness, or attorney who fails to mute themselves if it causes feedback, echoing, or is otherwise noisy, disruptive, or distracting. If more than one person in the same location will be participating remotely in the Remote Hearing or Hybrid Hearing, they must (i) share a device, (ii) ensure proper muting to avoid audio malfunction, or (iii) participate from separate rooms to ensure audio quality.
The WebEx "chat" feature should not be used for attorney-client communications because, if the hearing is recorded, all chats are also recorded, including "private" chats between two individuals. Attorneys and parties are hereby notified that chats may be recorded and will not be reminded at a hearing. For this reason, all are encouraged not to use the "private" chat feature of WebEx, but rather to request a breakout session or a break in the proceeding to allow for attorney/client communication using the attorney's own mobile phone, email, or some other method to ensure private communication. Attorneys should review Rule 1.6 of the Revised Rules of Professional Conduct as it may apply to communications with clients via various technological media during proceedings conducted via audio and video transmission.
The Clerk of Superior Court or the Presiding Judge shall administer oaths to witnesses during a remote proceeding. Affirmation may be used in lieu of swearing a witness. The person administering the oath must be able to see and hear the witness and the person taking the oath must be able to see and hear the official administering the oath.
Witnesses should be in a room alone when testifying in a Remote Hearing or a Hybrid Hearing, when feasible. Parties may be accompanied by their attorney if the attorney and party so choose, if a person will be in the room with a testifying witness, the attorney or witness shall advise the Presiding Judge prior to the witness' testimony. No person, including an attorney, may communicate with a witness about the witness' testimony while the witness is testifying via any mechanism or medium other than the audio and video technology seen and heard by all other participants, unless specifically permitted by the court to communicate privately during testimony.
If, while testifying, a witness wishes to communicate confidentially with his or her attorney, the Presiding Judge should be informed, and he or she may permit such confidential communication, by enabling a breakout session through the WebEx, taking a break to allow for telephonic communication, or such other appropriate means.
The Presiding Judge shall prescribe the manner in which and the terms upon which a Minor Child's testimony may be taken remotely and shall prescribe the appropriate location for the testimony and whether any third party may be present with the Minor Child.
Each party must deliver either a hard copy or an electronic copy of all pre-marked, proposed exhibits to the Clerk of Court in a District Court matter or a Superior Criminal Court matter or to the Trial Court Coordinator in a Superior Court civil matter at least five days prior to the hearing. This includes both documents provided to the other parties and those submitted only to the Clerk, as described below. Exhibits not delivered prior to the hearing may be accepted in the discretion of the presiding Judicial Official.
Special care should be taken to preserve confidentiality when confidential records are stored or transmitted electronically. Ideally, confidential records in electronic format should be encrypted in transit and at rest. See, e.g., https://www.americanbar.org/new/abanews/publications/youraba/2019/october2019/remember-your-ethical-duties-when-it-comes-to-encryption/.
Exhibits must be provided to the Clerk of Superior Court five business days before the court session in which the hearing is scheduled. The pre-marked exhibits must be provided in an envelope (case number on the outside of the envelope) and contain an exhibit log. The entirety of this submission shall not be made a part of the file and shall not be disclosed to anyone except appropriate judicial officials, absent consent of the submitting party. This rule is intended to ensure the Clerk of Superior Court has exhibits that may be admitted into evidence during a remote hearing, yet at the same time preserve a party's ability to prevent disclosure of trial strategy and tactics.
Exhibits must be provided in a physical medium that the Clerk of Superior Court can accept and retain (e.g., documents shall be printed out and in paper form, photos may be printed or on a disc or flash drive, and videos shall be on a flash drive, DVD, or other medium capable of retention). Exhibits that are admitted during the hearing that are not submitted to the Clerk of Superior Court prior to the hearing must be provided to the Clerk of Superior Court within three (3) business days after the court session concludes in the same format as offered into evidence in the remote proceeding (e.g., documents shall be printed out and in paper form, photos may be printed or on a disc or flash drive, and videos shall be on a flash drive, DVD, or other medium capable of retention). Any non-documentary exhibit offered into evidence in a remote hearing (e.g., by displaying it on camera for all participants) shall be delivered to the Clerk of Superior Court as presented in a container provided by the party and appropriate for long-term preservation of the exhibit. The Clerk of Superior Court has no responsibility to take custody of or retain exhibits that are neither offered nor admitted.
Unless the court has ordered that some other entity retain custody of an exhibit, any exhibit offered or admitted into evidence which was admitted, but which was not provided to the Clerk of Superior Court prior to the commencement of the proceeding, must be submitted to the Clerk of Superior Court not more than five business days after the court session concludes. The Clerk of Superior Court has no responsibility to take custody of or retain exhibits that are neither offered nor admitted. The pre-marked exhibits must be provided in an envelope (with the case number affixed to the outside of the envelope) and contain an exhibit log. Exhibits must be provided in the physical medium that the Clerk of Superior Court can accept and retain and in the same format as offered into evidence in the remote proceeding (e.g., documents shall be printed out and in paper form, photos may be printed or on a disc or flash drive, and videos shall be on a flash drive, DVD, or other medium capable of retention). Any non-documentary exhibit offered into evidence in a remote proceeding (e.g., by displaying it on camera for all participants) shall be delivered to the Clerk of Superior Court as presented in a container provided by the party and appropriate for long-term preservation of the exhibit.
The Presiding Judge may choose, but is not required, to inquire if all exhibits a party intended to introduce as evidence have been considered by the court at the conclusion of the hearing.
Presentation of confidential exhibits may require either exclusion of non-participants from the Remote or Hybrid Hearing or some other mechanism for exchanging those exhibits among the parties.
If the proceeding is one that is open to the public, then the Presiding Judge must facilitate access to the proceeding by the public and the media as nearly as practicable to the access that would be available were the proceeding conducted in person in accordance with G.S. § 7A-49.6(g), while also protecting confidential information, such as juvenile case records, displayed during the Remote or Hybrid Hearing.
A witness in a civil Superior Court jury trial may testify remotely if the Presiding Judge finds that good cause exists for doing so under the circumstances in accordance with G.S. § 7A 49.6(c) or as otherwise provided by law. Any attorney or unrepresented party seeking to solicit witness testimony remotely shall file with the Clerk of Superior Court and the TCC and serve on the other attorneys and/or unrepresented parties pursuant to N.C. R. Civ. P. 5 at least five days prior to the hearing, a motion setting forth the specific basis of the request for remote testimony. The SRSCJ or Presiding Judge shall consider the request and make a written or recorded determination as to whether the party has shown good cause to permit the witness to testify remotely. There is no statutory authority to make this good cause determination ex parte, so procedures under N.C. R. Civ. P. 7(b) shall be followed. Only if the SRSQ or the Presiding Judge finds that the attorney or the unrepresented party has demonstrated good cause for the request, may the witness testify remotely. If an emergency arises and the requesting attorney or unrepresented party is unable to provide proper notice as outlined above, the requesting attorney or unrepresented party may make the request orally in accordance with N.C. R. Civ. P. 7(b). Both the oral motion and the ruling on the motion should be recorded.
Each individual Confidential Hearing must be a separate recording in WebEx.
Confidential WebEx recordings may only be provided to a requesting attorney and/or party as permitted by law. Sealed WebEx recordings may only be provided to a requesting attorney and/or party as permitted by order of the court.
To facilitate public access to a Remote Hearing, each WebEx link shall be published on the court calendar for the session. Any person who wishes to obtain access to a hearing may also contact the Clerk of Superior Court at 336-242-6701 and/or the TCC at 336-242-6862 at least five business days prior to the hearing to obtain a link to the WebEx proceeding. All spectators must access the hearing via the appropriate hearing link at the time set for the hearing. If a public access link (e.g., a YouTube link for live streaming) is provided that is separate from the WebEx link used by parties and witnesses, spectators/media should access the hearing via the public access link. For the purpose of this order, a spectator is defined as any person or entity who is not a hearing participant (e.g., attorney, party, or witness).
Absent approval by the Presiding Judge under Rule 15, General Rules of Practice for the Superior and District Courts, the parties, attorneys, witnesses, spectators, public and media shall refrain from making any recordings videos, or photographs of any hearing, including Remote Hearings and Hybrid Hearings. The Presiding Judge may permit or prohibit "electronic coverage" and "electronic media coverage" as provided in Rule 15, General Rules of Practice for the Superior and District Courts. Failure to comply with a prohibition from the SRSG or the Presiding Judge of electronic coverage or electronic media coverage, such electronic coverage may result in ejection from the hearing and appropriate sanctions to include contempt. Rule 15(i), General Rules of Practice for the Superior and District Courts, provides that recordings by the media or the public permitted by the court, if any, including film, video tape, still photographs or audio reproductions shall not be admissible as evidence in the proceeding out of which it arose, any proceeding subsequent and collateral thereto, or upon any retrial or appeal of such proceedings.
Spectator cameras may be enabled, but microphones shall be muted during any Remote Hearing. Spectators shall not speak or otherwise communicate with any party or witness during the hearing. Spectators shall not utilize the chat feature or interfere with the hearing in any way. The Presiding Judge will provide instructions to all parties and spectators to protect the integrity of the hearing. Once the Presiding Judge begins instructions for the participants, the WebEx hearing may be locked, and additional spectators may be prohibited from joining the hearing.
Any spectator, witness, or participant who violates orders given by the SRSG or the Presiding Judge pertaining to the use of WebEx, who contacts testifying witnesses or parties, who photographs, records, or videos the proceeding (without the permission of the SRSa or the Presiding Judge), or who disrupts the proceeding is subject to being ejected from the hearing and may not be allowed to rejoin the hearing in the Presiding Judge's discretion. They are also subject to appropriate sanctions to include contempt.
These limitations on spectator access are necessary to protect the integrity of the hearing and to ensure the hearing can proceed without reasonable interruption or delay. Further, the limitations protect the ability of the court and the parties to remotely conduct hearings without undue delay, interruption, or disruption while still granting the public's ability to attend the hearing.
If the interpreter cannot be adequately accommodated in a Remote Hearing or Hybrid Hearing, the proceeding shall be held in-person. If, at any time during a Remote Hearing, the interpretation cannot be conveyed to either the court or the party, the hearing shall be delayed to address interpretation or continued to another court session.
N.C. R. Prac. Sup. & Dist. Ct. Civ. P. 12.0