1.15Videoconferencing¹

Consistent with the court rules, and subject to MCR 2.407(4), “courts may determine the manner and extent of the use of videoconferencing technology and may require participants to attend court proceedings by videoconferencing technology.” MCR 2.407(B)(2). “All proceedings occurring by videoconferencing are subject to requirements, standards, and guidelines published by the [SCAO] and the criteria set forth in [MCR 2.407(C)].”² MCR 2.407(B)(1).

Additionally, “a court may, at the request of any participant, or sua sponte, allow the use of videoconferencing technology by any participant in any civil proceeding.” MCR 2.408(A)(1). However, “[e]xcept as otherwise provided in [MCR 2.408(A)(2)], the use of videoconferencing technology shall not be used in bench or jury trials, or any civil proceeding wherein the testimony of witnesses or presentation of evidence may occur, except in the discretion of the court after all parties have had notice and opportunity to be heard on the use of videoconferencing technology. MCR 2.408 “does not supersede a participant’s ability to participate by telephonic means under MCR 2.402.” MCR 2.408(A)(3).

A participant may request to physically appear in person for any proceeding. MCR 2.407(B)(4). “If there is a request to appear in person, or a participant is found to be unable to adequately use the technology, to hear or understand or be heard or understood, the presiding judge and any attorney of record for said participant must appear in person with the participant for said proceeding. Subject to [MCR 2.407(B)(5)], the court must allow other participants to participate using videoconferencing technology.” MCR 2.407(B)(4).

A court may determine “that a case is not suited for videoconferencing, and may require any hearing, even a proceeding categorized as presumptively subject to videoconferencing technology, to be conducted in person.” MCR 2.407(B)(5). However, a court must “consider the factors listed in [MCR 2.407(C)]” and “state its decision and reasoning, either in writing or on the record, when requiring in-person proceedings in each case where there is a presumption for the use of videoconferencing technology.” MCR 2.407(B)(5)(a)-(b).

Courts “must provide reasonable notice to participants of the time and mode of a proceeding. If a proceeding will be held using videoconferencing technology, the court must provide reasonable notice of the way(s) to access that proceeding.” MCR 2.407(B)(6). Courts must also “allow a party and their counsel to engage in confidential communication during a proceeding being conducted by videoconferencing technology.” MCR 2.407(B)(7).

“If, during the course of a videoconference proceeding, the court or a participant is unable to proceed due to failure of technology, the court must reschedule the proceeding and promptly notify the participants of the rescheduled date and time and whether the proceeding will be held using videoconferencing technology or in person.” MCR 2.407(B)(8). “All proceedings that are held using videoconferencing technology or communication equipment must be recorded verbatim by the court with the exception of hearings that are not required to be recorded by law.” MCR 2.407(B)(9). “Courts must provide access to a proceeding held using videoconferencing technology to the public either during the proceeding or immediately after via access to a video recording of the proceeding, unless the proceeding is closed or access would otherwise be limited by statute or rule.” MCR 2.407(B)(10).

See also MCL 600.2164a, which addresses videoconference testimony by an expert witness at trial.

A.Use of Videoconferencing in Circuit Court

In circuit court, “[s]ubject to a determination by the court that the use of videoconferencing technology is inappropriate for a particular case under an analysis as contained in MCR 2.407(C), the use of videoconferencing technology shall be presumed for:

(1) civil pretrials;

(2) early scheduling conferences under MCR 2.401(B);

(3) motions filed pursuant to MCR 2.119 regarding discovery;

(4) adjournments;

(5) modifications to scheduling orders;

(6) motions in limine;

(7) postjudgment collection or discovery matters;

(8) testimonial proofs for hearings under MCR 3.210(A)(4);

(9) motions to correct, strike, or amend pleadings; and

(10) motions pursuant to MCR 2.116.” MCR 2.407(B).

B.Use of Videoconferencing in District Court

In district court, “[s]ubject to a determination by the court that the use of videoconferencing technology is inappropriate for a particular case under an analysis as contained in MCR 2.407(C), the use of videoconferencing technology shall be presumed for:

(1) civil pretrials;

(2) early scheduling conferences under MCR 2.401(B);

(3) motions filed pursuant to MCR 2.119 regarding discovery;

(4) adjournments;

(5) postjudgment collection matters; and

(6) motions to correct, strike, or amend pleadings.” MCR 2.407(C).

C.Criteria for Videoconferencing

“In determining in a particular case the use of videoconferencing technology and the manner of proceeding with videoconferencing, the court shall consider the following factors:

(1) The capabilities of the court and the parties to participate in a videoconference.

(2) Whether a specific articulable prejudice would result.

(3) The convenience of the parties and the proposed witness(es), the cost of producing the witness in person in relation to the importance of the offered testimony, and the potential to increase access to courts by allowing parties and/or their counsel to appear by videoconferencing technology.

(4) Whether the procedure would allow for full and effective cross-examination, especially when the cross-examination would involve documents or other exhibits.

(5) Whether the court has reason to believe that the participants in this hearing will not be able to maintain the dignity, solemnity, and decorum of court while using videoconferencing technology, or that the use of videoconferencing technology will undermine the integrity, fairness, or effectiveness of the proceeding.

(6) Whether a physical liberty or other fundamental interest is at stake in the proceeding.

(7) Whether the court can sufficiently control the participants in this hearing or matter so as to effectively extend the courtroom to the remote location.

(8) Whether the use of videoconferencing technology presents the person at a remote location in a diminished or distorted sense that negatively reflects upon the individual at the remote location to persons present in the courtroom.

(9) Whether the person appearing by videoconferencing technology presents a significant security risk to transport and be present physically in the courtroom.

(10) Whether the parties or witness(es) have waived personal appearance or stipulated to videoconferencing.

(11) The proximity of the videoconferencing request date to the proposed appearance date.

(12) Any other factors that the court may determine to be relevant.” MCR 2.407(C).

D.Request for Videoconferencing and Participant Contact Information

A participant who requests videoconferencing is subject to the following requirements:

“(1) A participant who requests the use of videoconferencing technology shall ensure that the equipment available at the remote location meets the technical and operational standards established by the State Court Administrative Office.

(2) A participant who will be using videoconferencing technology must provide the court with the participant’s contact information, including mobile phone number(s) and email address(es), in advance of the court date when videoconferencing technology will be used. A court may collect the contact information using an SCAO-approved form. The contact information form used under this provision shall be confidential. An email address for an attorney must be the same address as the one on file with the State Bar of Michigan.

(3) There is no motion fee for requests submitted under this rule.” MCR 2.407(D).