For better or for worse, virtual civil trials—a product necessitated by the pandemic—are likely here to stay. Proponents of virtual civil trials laud the virtual format, in part because it provides participants with opportunities for greater engagement. For example, jurors might be able to see and hear evidence better via their computer screens and headphones than they would in the courtroom. But litigants should beware that jurors are not the only ones with increased courtroom access.
Competitors, the media, and the public at large may also have greater or easier access to information presented at trial. Before virtual trials, a competitor might only hear what happened at trial if the trade press covered a jury verdict or after the court published its decision in a bench trial. Now, courts broadcast their proceedings via teleconferences and videoconferences that anyone can access from the courts’ websites. And if the media is listening, those broadcasts often get pushed out in real time to the public in 280-character increments. Third parties whose trade secrets or confidential information is being relied on as evidence in a trial must be especially vigilant prior to and during virtual trials. Some courts—especially in trials that have attracted public interest—require parties to publish demonstratives and exhibits used at trial, sometimes on a daily basis. Other courts might display exhibits in real time on videoconferencing platforms. In addition to ensuring that their confidential information is appropriately sealed, third parties need to monitor how their information is being used in demonstratives and exhibits to ensure that information the court ordered sealed is not inadvertently disclosed by the parties. Even if only momentary, such disclosures may be long enough to prove that you can’t unring the bell when it comes to trade secrets in a competitor’s hands.