International Archives - Columbia Law Review

“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 . . . ?” [footnote]Kore Meals LLC v. Freshii Dev. LLC, 2021 CanLII 2896, para. 1 (Can. Ont. Sup. Ct. J.) (noting the impact of videoconferencing on Canada’s forum non conveniens doctrine).[/footnote] Introduction Despite increased COVID-19 vaccination rates since the virus emerged,[footnote]See Nambi Ndugga, Latoya Hill, Samantha Artiga & Sweta Haldar, Latest Data on COVID-19 Vaccinations by Race/Ethnicity, KFF (July 14, 2022), https://www.kff.org/coronavirus-covid-19/issue-brief/latest-data-on-covid-19-vaccinations-by-race-ethnicity [https://perma.cc/JST8-4W5T] (finding that seventy-eight percent of the U.S. population has received at least one dose of a COVID-19 vaccine).[/footnote] the lingering effects of the pandemic may still force the federal judiciary to address its newly found ties to videoconferencing proceedings.[footnote]In response to the pandemic, many courts started embracing videoconferencing proceedings to further the administration of justice and ease their growing backlogs. See Scott Dodson, Videoconferencing and Legal Doctrine, 51 Sw. L. Rev. 9, 12 (2021) (noting the widespread use of videoconferencing during the pandemic). Before the pandemic, some federal courts, under the judge’s discretion, utilized teleconferencing and videoconferencing technology to conduct various court proceedings. Alicia L. Bannon & Douglas Keith, Remote Court: Principles for Virtual Proceedings During the COVID-19 Pandemic and Beyond, 115 Nw. U. L. Rev. 1875, 1882 (2021) (“[T]he use of video and phone to hold remote proceedings has been part of the legal landscape for decades . . . .”); see also, e.g., Soloff v. Aufman, No. 17cv1500, 2018 WL 3474639, at *2 (W.D. Pa. July 18, 2018) (explaining that the plaintiff’s motion to appear via Skype, FaceTime, or conference call at the Rule 26(f) conference was granted by the court); Staley v. U.S. Bank Nat’l Ass’n, No. 1:10-cv-00591-BLW, 2013 WL 393325, at *2 (D. Idaho Jan. 31, 2013) (“[T]he Court agrees with Staley that [the witness] is probably a critical witness, and it would be better if [the witness] could testify at trial, even if done via video conference.”).[/footnote] Amid the rapid spread of the COVID-19 virus following President Donald J. Trump’s national emergency declaration in 2020,[footnote] Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020). President Joseph Biden also issued a notice continuing the national emergency concerning the COVID-19 pandemic on February 24, 2021. Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 Fed. Reg. 11,599 (Feb. 24, 2021). The extension of the COVID-19 national emergency through February 2023 remains despite President Biden’s recent announcement in a 60 Minutes interview that the “[COVID-19] pandemic is over.” See Kanishka Singh, U.S. Extends COVID-19 Public Health Emergency Declaration, Reuters (Oct. 13, 2022), https://www.reuters.com/world/us/us-extends-covid-19-public-health-emergency-declaration-2022-10-13/ [ https://perma.cc/N7C4-E86N ] (noting that while the toll of the pandemic has diminished significantly, hundreds of people a day continue to die from COVID-19 in the United States).[/footnote] the Centers for Disease Control and Prevention encouraged practicing social distancing and minimizing person-to-person contact.[footnote]Anne Schuchat, Public Health Response to the Initiation and Spread of Pandemic COVID-19 in the United States, February 24–April 21, 2020, 69 Morbidity & Mortality Wkly. Rep. 551, 551–55 (2020).[/footnote] After the declaration, most states took further action by implementing social distancing and mask mandates.[footnote]2020 COVID-19 State Restrictions, Re-Openings, and Mask Requirements, Nat’l Acad. for State Health Pol’y, https://nashp.org/2020-covid-19-state-restrictions-re-openings-and-mask-requirements/ [https://perma.cc/GWG2-69RB] (last updated Jan. 11, 2021); States’ COVID-19 Public Health Emergency Declarations and Mask Requirements, Nat’l Acad. for State Health Pol’y (Apr. 7, 2020), https://www.nashp.org/governors-prioritize-health-for-all/ [https://perma.cc/LZD7-UWB8] (last updated Feb. 28, 2023).[/footnote] Shortly thereafter, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act.[footnote]CARES Act, Pub. L. No. 116-136, § 15002(b)(1), 134 Stat. 281, 528 (2020).[/footnote] 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.[footnote]Id. The authorization is temporary and will expire when the state of emergency ends. Id. § 15002(b)(5).[/footnote] The Act also allocated six million dollars to the courts of appeals, district courts, and other judicial services to adapt to the novel virus.[footnote]Id. § 15001 (“For an additional amount for ‘Salaries and Expenses’, $6,000,000, to prevent, prepare for, and respond to coronavirus, domestically or internationally . . . .”).[/footnote] 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.[footnote]Judiciary Authorizes Video/Audio Access During COVID-19 Pandemic, U.S. Cts. (Mar. 31, 2020), https://www.uscourts.gov/news/2020/03/31/judiciary-authorizes-videoaudio-access-during-covid-19-pandemic [https://perma.cc/S2J6-VXEY] (“[T]he Judicial Conference of the United States has temporarily approved the use of video and teleconferencing for certain criminal proceedings and . . . for civil proceedings during the COVID-19 national emergency.”). For reference, the Judicial Conference is composed of the Chief Justice of the United States, who serves as the presiding officer, the chief judge of each judicial circuit, the Chief Judge of the Court of International Trade, and a district judge from each regional judicial circuit. See About the Judicial Conference, U.S. Cts., https://www.uscourts.gov/about-federal-courts/governance-judicial-conference/about-judicial-conference [https://perma.cc/DU2G-T33H] (last visited Oct. 13, 2022).[/footnote] Following this announcement, federal courts disjointly issued guidance on closures and the availability of videoconferencing proceedings.[footnote]See Court Orders and Updates During COVID-19 Pandemic, U.S. Cts., https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic [https://perma.cc/V6VV-26X2] [hereinafter U.S. Cts., Court Orders and Updates] (last updated Feb. 21, 2023) (“Below is a list of links to all federal court websites, as well as links to court orders and other information posted to the courts’ websites regarding the COVID-19 pandemic and court business.”). Although this Note recognizes a varying range of terms associated with the technological options that have expanded due to COVID-19, it—like Richard Susskind—adopts generic terminology to avoid confusion. This Note uses “videoconferencing hearings,” “proceedings,” or “technology” to refer to and encompass audio hearings, video hearings, videoconferencing hearings, virtual hearings, or remote hearings that occur without participants physically attending the proceedings in person. For reference, see Richard Susskind, The Future of Courts, Practice (.July/Aug. 2020) https://clp.law.harvard.edu/knowledge-hub/magazine/issues/remote-courts/the-future-of-courts/ [https://perma.cc/6C8E-G2FU].[/footnote] In response to the pandemic, some courts suspended civil hearings and jury trials, while others continued to conduct in-person and videoconferencing proceedings.[footnote]See, e.g., Eighth Amended General Order, In re: Coronavirus COVID-19 Public Emergency, No. 20-0012, at 1 (N.D. Ill. Nov. 13, 2020) (ordering the substitution of remote telephone or videoconference for in-person hearings unless an in-person hearing is required by law in the Northern District of Illinois); District Court General Order, In re: Court Operations During the COVID-19 Pandemic, No. 2020-19, at 1 (D. Colo. Nov. 5, 2020) (ordering the delay of in-person trial proceedings in the District of Colorado); Seventh Amended General Order, In re: COVID-19 Public Emergency, No. 20-01, at 1 (C.D. Ill. Oct. 30, 2020) (ordering the suspension of jury trials in the Central District of Illinois).[/footnote] 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.[footnote]See Herbert B. Dixon Jr., Pandemic Potpourri: The Legal Profession’s Rediscovery of Teleconferencing, Judges’ J., Fall 2020, at 37, 38–39 [hereinafter Dixon, Pandemic Potpourri] (“[L]awyers are nevertheless being forced to proceed with remote depositions at an increasing rate.”).[/footnote] With federal judges consistently exercising their discretion to conduct court proceedings via videoconferencing,[footnote]See Allie Reed & Madison Alder, Zoom Courts Will Stick Around as Virus Forces Seismic Change, Bloomberg L. (July 30, 2020), https://news.bloomberglaw.com/us-law-week/zoom-courts-will-stick-around-as-virus-forces-seismic-change [https://perma.cc/3Q65-RQ9Y] (“[F]ederal courts have autonomy to offer virtual options in many civil proceedings.”); Trial by Zoom: Virtual Trials in the Time of COVID-19, Eversheds Sutherland (Feb. 11, 2021), https://us.eversheds-sutherland.com/NewsCommentary/Legal-Alerts/239466/Trial-by-Zoom-virtual-trials-in-the-time-of-COVID-19 [https://perma.cc/K3CN-LULD ].[/footnote] courts have increasingly turned to technology to administer essential court hearings and mitigate limitations to courtrooms.[footnote]See Phil Goldstein, Courts Have Embraced Videoconferencing Amid the Pandemic, StateTech (Aug. 18, 2020), https://statetechmagazine.com/article/2020/08/courts-have-embraced-videoconferencing-amid-pandemic (on file with the Columbia Law Review ) (“[C]ourt systems across the country have been conducting proceedings via videoconferencing technology as government buildings and courthouses closed and physical distancing guidelines have been implemented.”); Reed & Alder, supra note 14 (emphasizing that the legal profession has rediscovered videoconferencing technology because of the pandemic); supra note 10 and accompanying text.[/footnote] 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.[footnote]See Madison Alder, Jasmine Ye Han & Andrew Wallender, Federal Courts Respond to COVID-19: Live Map, Bloomberg L. (Mar. 20, 2020), https://news.bloomberglaw.com/us-law-week/arguments-axed-access-limited-courts-respond-to-covid-19-map [https://perma.cc/6QCH-UZXW] (last updated Feb. 23, 2022) (tracking how federal courts are adjusting their operations to the COVID-19 virus). For example, Judge Kristen L. Mix noted that it seemed like Colorado is “on a different planet” because video technology was not as incorporated into Colorado’s court proceedings when compared to other districts that have used videoconferencing technology efficiently and effectively. Tom McParland, Here to Stay: Expect Remote Hearings to Become Post-Pandemic Fixture, Panelists Say, N.Y.L.J. (July 14, 2021), https://www.law.com/newyorklawjournal/2021/07/14/here-to-stay-expect-remote-hearings-to-become-post-pandemic-fixture-rakoff-says/ (on file with the Columbia Law Review ).[/footnote] Some courts use online-based platforms, like Zoom, to enable all court participants—including attorneys, judges, court staff, and litigants—to appear remotely.[footnote]See Dixon, Pandemic Potpourri, supra note 13, at 38 (describing how judges, lawyers, parties, and jurors participated in a videoconference civil jury trial in a federal court in Seattle, Washington); see also Jenia I. Turner, Remote Criminal Justice, 53 Tex. Tech. L. Rev. 197 (2021). [/footnote] 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.[footnote]See, e.g., SAPS, LLC v. EZCare Clinic, Inc., No. 19-11229, 2020 WL 1923146, at *2 (E.D. La. Apr. 21, 2020) (“This court will not require parties to appear in person with one another in the midst of the present pandemic. Nor is it feasible to delay the depositions until some unknown time in the future. . . . The depositions proposed here will be taken by video-conference software . . . .”); United Coals, Inc. v. Attijariwafa Bank, No. 1:19-cv-95, 2020 WL 1866426, at *7 n.8 (N.D. W. Va. Apr. 14, 2020) (“As counsel and the Court endeavor to litigate and adjudicate during the COVID-19 outbreak, the world in which lawyers toil for depositions and the like has shrunk even more than before the pandemic with the prevalence of Zoom, FaceTime, Skype and other virtual discovery platforms.”).[/footnote] 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.[footnote]See Marc O. Wolinsky, Forum Non Conveniens and American Plaintiffs in the Federal Courts, 47 U. Chi. L. Rev. 373, 374 (1980) (noting that forum non conveniens grants courts discretion to decline to hear certain cases); Scott Dodson, Lee H. Rosenthal & Christopher L. Dodson, The Zooming of Federal Civil Litigation, Judicature, Fall/Winter 2020–21, at 13, 14.[/footnote] 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.[footnote]See Jeffrey B. Greenspan, Seventh Circuit Reminds Litigants that Doctrine of Forum Non Conveniens Still “Has Continuing Application in Federal Courts”, Am. Bar Ass’n (Feb. 13, 2018), https://www.americanbar.org/groups/litigation/committees/trial-practice/practice/2018/mueller-v-apple-leisure-corp/ [https://perma.cc/FU8N-MHAN] (explaining that “28 U.S.C. 1404(a) is a codification of the doctrine of forum non conveniens for cases in which the transferee forum is within the federal court system”).[/footnote] 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.[footnote]5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1352 (3d ed. 2022) (stating that a federal court will grant a motion to dismiss for forum non conveniens in instances where “the alternative forum is a state court or the court of a foreign country, or situations in which there is no alternative federal forum to which the action could be transferred”).[/footnote] 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.[footnote]See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 436 (2007) (“[W]here subject-matter or personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course.”); 14D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3828 (4th ed. 2022).[/footnote] 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.[footnote]See Martin Davies, Time to Change the Federal Forum Non Conveniens Analysis, 77 Tul. L. Rev. 309, 311 (2002) [hereinafter Davies, Change the Federal Forum Non Conveniens Analysis] (“[Forum non conveniens motions] are motions to dismiss a claim that properly falls within the court’s jurisdictional rules, on the ground that it could be tried more conveniently in another country.”).[/footnote] 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.[footnote]See id. at 316, 323 (explaining the forum non conveniens analysis that federal courts conduct).[/footnote] 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.[footnote]Bannon & Keith, supra note 3, at 1889–93 (emphasizing that the rapid adoption of videoconferencing proceedings has further accentuated a digital divide).[/footnote] The disparate and discretionary application of videoconference technology due to the lack of uniform, formal standards governing its widespread use raises significant concerns.[footnote]See Sarah L. Büthe & Henning H. Krauss, COVID-19 and the Courts: U.S. and German Courts Managing Civil Dockets in a Crisis, 29 Tul. J. Int’l & Compar. L. 213, 220 (2021) (“While the federal courts have nearly unanimously used technology to enable physically distanced hearings, their approaches have varied. They use a bevy of different video conferencing platforms, including FaceTime, Cisco Jabber, Skype, and Zoom, with varying degrees of specificity and focus on telephonic versus video.”).[/footnote] 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.[footnote]See generally Bannon & Keith, supra note 3 (arguing that remote courts have provided greater access to justice while also becoming instruments of unfairness depending on rules and procedures that courts have in place and the nature of the court proceedings).[/footnote] 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.[footnote]See Alicia Bannon & Janna Adelstein, Brennan Ctr. for Just., The Impact of Video Proceedings on Fairness and Access to Justice in Court 2, 9 (2020), https://www.brennancenter.org/our-work/research-reports/impact-video-proceedings-fairness-and-access-justice-court [https://perma.cc/8UBR-E38Z] (“There is only limited research on the benefits and harms of video proceedings with respect to access to the courts.”); Dixon, Pandemic Potpourri, supra note 13, at 37 (emphasizing that the legal profession has not easily embraced technological opportunities); Susskind, supra note 11 (noting the numerous calls for court transformation using technology that went unanswered before the pandemic); Robert Storace, Zoom Forced Me to Quit: Lawyer Says Technology Accelerated His Retirement, Conn. L. Tribune (July 28, 2021), https://www.law.com/ctlawtribune/2021/07/28/zoom-forced-me-to-quit-lawyer-says-technology-accelerated-his-retirement/ (on file with the Columbia Law Review ) (finding that some lawyers have struggled to adjust to technological changes).[/footnote] In addition, existing scholarship primarily focuses on criminal and immigration proceedings because of the more significant constitutional considerations related to those proceedings.[footnote]See Lucy Lang, Virtual Criminal Justice May Make the System More Equitable, Wired (July 1, 2020), https://www.wired.com/story/opinion-virtual-criminal-justice-may-make-the-system-more-equitable/ [https://perma.cc/ZM3B-DYAQ] (highlighting that the transition to videoconferencing engendered innovative practices that have proved to be more efficient and should be continued even after the pandemic ends). Others have objected to the use of videoconferencing in these proceedings. Lisa Bailey Vavonese, Elizabeth Ling, Rosalie Joy & Samantha Kobor, How Video Changes the Conversation: Social Science Research on Communication Over Video and Implications for the Criminal Courtroom 1 (2020), https://www.courtinnovation.org/sites/default/files/media/document/2020/ Monograph_RemoteJustice_12032020.pdf [https://perma.cc/AG3Q-VYQT] (highlighting the lack of empirical research on the use and impact of video in courtrooms and especially cautioning against the permanent adoption of videoconferencing for high-stakes criminal proceedings when an individual’s liberty is at risk).[/footnote] 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.[footnote]This Note focuses primarily on federal rather than state civil litigation to allow for a more consistent analysis governing the application of forum non conveniens as a federal procedural common law doctrine. States continue to have different forum non conveniens policies; some refuse to recognize the doctrine at all. For more information about state doctrines on forum non conveniens, see generally William S. Dodge, Maggie Gardner & Christopher A. Whytock, The Many State Doctrines of Forum Non Conveniens, 72 Duke L.J. 1163 (2023).[/footnote] 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.

International

ZOOMING OUR WAY OUT OF THE FORUM NON CONVENIENS DOCTRINE

International Comity in American Law