“In the age of Zoom, is any forum more non conveniens than another? Has a venerable doctrine now gone the way of the VCR player . . . ?”
Despite increased COVID-19 vaccination rates since the virus emerged,
the lingering effects of the pandemic may still force the federal judiciary to address its newly found ties to videoconferencing proceedings.
Amid the rapid spread of the COVID-19 virus following President Donald J. Trump’s national emergency declaration in 2020,
the Centers for Disease Control and Prevention encouraged practicing social distancing and minimizing person-to-person contact.
After the declaration, most states took further action by implementing social distancing and mask mandates.
Shortly thereafter, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
The Act officially gave chief judges of district courts the authority to permit “video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available” for certain criminal proceedings.
The Act also allocated six million dollars to the courts of appeals, district courts, and other judicial services to adapt to the novel virus.
During that same period, the Judicial Conference, a national policymaking body for the federal courts, temporarily approved court teleconferencing for certain criminal and civil proceedings.
Following this announcement, federal courts disjointly issued guidance on closures and the availability of videoconferencing proceedings.
In response to the pandemic, some courts suspended civil hearings and jury trials, while others continued to conduct in-person and videoconferencing proceedings.
Thus, the pandemic has dramatically transformed how federal courts operate in the United States. Videoconferencing proceedings have become the new normal, court deadlines and filings are more flexible than before, and the use of technology in depositions and discovery has increased.
With federal judges consistently exercising their discretion to conduct court proceedings via videoconferencing,
courts have increasingly turned to technology to administer essential court hearings and mitigate limitations to courtrooms.
Federal courts have taken drastically different approaches in adopting and using videoconferencing proceedings, partly due to the pandemic’s disparate effects on various geographical regions.
Some courts use online-based platforms, like Zoom, to enable all court participants—including attorneys, judges, court staff, and litigants—to appear remotely.
These courts have noted that videoconferencing technology in courts has reduced the burden of litigation that both domestic and international litigants face in the United States.
Many courts are now increasingly conscious—and similarly skeptical—of the benefits that technology, like Zoom, has provided in the administration of justice.
The increased use of videoconferencing proceedings in federal civil litigation, in turn, raises critical questions about the continued relevance of forum non conveniens, a traditional common law procedural doctrine.
The forum non conveniens doctrine is not to be confused with its codified sister doctrine of venue transfer under 28 U.S.C. § 1404(a), which only applies to cases in which the transferee forum is within the U.S. federal court system.
Defendants can raise forum non conveniens motions to dismiss a lawsuit during the first stage of the litigation process when responding to a plaintiff’s complaint.
Courts are free to hear and rule on a defendant’s forum non conveniens claim even if the court does not retain personal or subject-matter jurisdiction over the case.
Federal courts commonly rely on the forum non conveniens doctrine to dismiss a lawsuit from the U.S. legal system to a more convenient international forum available for litigation.
In doing so, courts tend to focus on factors related to the parties’ convenience and the adequacy of the remedy in the potential non-U.S. forum.
Although the pandemic has subsided, and some courts are returning to business as usual, some judges continue to use videoconferencing proceedings and argue for the total adoption of videoconferencing technology in civil litigation. In contrast, others caution against the overwhelming use of videoconferencing technology in court proceedings.
The disparate and discretionary application of videoconference technology due to the lack of uniform, formal standards governing its widespread use raises significant concerns.
Consequently, the varying use of videoconferencing proceedings among federal district courts could result in far-reaching consequences across the court system by mitigating some of the convenience factors that impact the forum non conveniens calculus and thereby transforming the practicality of the doctrine.
Currently, research on the impact of videoconferencing proceedings on civil litigation is scarce, due to the legal field’s initial resistance to adopting technological changes.
In addition, existing scholarship primarily focuses on criminal and immigration proceedings because of the more significant constitutional considerations related to those proceedings.
This Note seeks to fill the gaps in existing scholarship by examining the impact of videoconferencing proceedings on the forum non conveniens doctrine, especially given the pandemic’s unprecedented disruption to the court system.
Ultimately, this Note proposes a series of modifications in videoconferencing proceedings administered by federal courts applying the forum non conveniens doctrine.
This Note proceeds as follows: Part I summarizes the development and practice of the forum non conveniens doctrine in the United States. Part II discusses the growing use of videoconferencing proceedings in courts during the COVID-19 pandemic and explains the impact on the forum non conveniens doctrine. Part II also examines the disparate use of videoconferencing proceedings among federal courts and the effect of this disparity on forum shopping. Finally, Part III concludes that Congress and the Supreme Court should establish standardized videoconferencing technological requirements, and courts should explicitly consider technology’s benefits and detriments when making a forum non conveniens determination.