Potential Impact of Remote Trial Testimony on Forum Non Conveniens

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside the Section of Litigation paywall and available to all readers.

Through the amendment of one of its rules and the enactment of another, the Illinois Supreme Court recently sanctioned—among other things—remote testimony in civil trials and evidentiary hearings, thereby potentially making motions to transfer venue on forum non conveniens grounds even less likely to be granted in the future. Illinois Supreme Court Rule 241 now provides in relevant part that:

The court may, upon request or on its own order, for good cause shown and upon appropriate safeguards, allow a case participant to testify or otherwise participate in a civil trial or evidentiary hearing by video conference from a remote location. Where the court or case participant does not have video conference services available, the court may consider the presentation of the testimony by telephone conference in compelling circumstances with good cause shown and upon appropriate safeguards.

The previous version of rule 241 provided that “[t]he court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.” While the October 4, 2011, committee comments accompanying rule 241—which have not been amended—state that “[t]he presentation of live testimony in court remains of utmost importance,” the May 22, 2020, committee comments refer to live testimony as something of only “relative importance.”

Per the amendment to rule 241, securing remote testimony by video conference in Illinois civil cases no longer requires a showing of “compelling circumstances”—something now reserved for the allowance of remote testimony by telephone or other audio means. The 2020 committee comments to rule 241 describe what constitutes “good cause” as follows:

Good cause is likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident, illness, or limited court operations, but also in foreseeable circumstances such as residing out of state. . . . Where the court or case participant does not have video conference services, the court may consider the presentation of the testimony by telephone or other audio means but only upon a showing of good cause, including a showing of exigent, safety, or security circumstances. . . .

Elsewhere, the 2020 committee comments suggest that a case participant’s “distance from court” should be considered in determining whether remote testimony by video conference is allowed.

The amendment of rule 241 and the enactment of rule 45—which more broadly applies to remote involvement by “case participants” such judges, parties, lawyers, guardians ad litem, witnesses, experts, interpreters, and court reporters—could foreseeably impact the analysis of motions to transfer venue on forum non conveniens grounds since the residence of parties and witnesses is one of the factors examined when such motions are considered. See Langenhorst v. Norfolk Southern Ry., 219 Ill. 2d 430, 449 (2006). This is especially true considering the aforementioned committee comment regarding a case participant’s “distance from court” and the fact that, per rule 241, courts can allow remote testimony “on [their] own order.”

The extent to which Illinois and other courts will consider the possibility of remote testimony when ruling on motions to transfer venue on forum non conveniens grounds remains to be seen. Nevertheless, arguments regarding the potential for remote testimony should be expected in opposition to motions which cite the convenience of witnesses as a basis to transfer venue in Illinois and across the country.

Nicholas S. Graber is an associate at Neal, Gerber & Eisenberg LLP in Chicago, Illinois. 

_{Copyright © 2020 American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}