The convenience and widespread use of remote depositions and virtual hearings will not, in seems, make it any easier for plaintiffs to choose what they believe is the most advantageous forum for litigating their cases.
At least not in Illinois, where an appellate court recently entertained a medical malpractice plaintiff’s argument that the modern information technologies that brought us remote depositions and virtual trials have rendered the equitable doctrine of forum non conveniens obsolete in the context of intrastate transfers. The court decided, in Adamian v. Balash, No. 1-23-1876 (Ill. App. Ct., 1st Dist., Sept. 5, 2024), that this argument was an overreach.
Before discussing the court’s ruling further, the reader needs to know precisely what the parties were arguing about. The three relevant Illinois counties are adjacent to each other on a west-east axis: Kane County is westernmost, DuPage County is adjacent to the east, and Cook County, which surrounds Chicago, is adjacent on DuPage’s eastern border. The distance between the DuPage County Courthouse and the Cook County Courthouse is 30 miles. The distance between the Kane County Courthouse and the Cook County Courthouse is slightly further: 37 miles.
The ability of parties to handle significant aspects of pretrial discovery and other pretrial matters virtually should be taken into account when deciding whether the plaintiff’s choice of forum is a fair one.
The plaintiffs resided in Kane County. The injuries alleged in the complaint (suffered by their infant son during childbirth) occurred at Good Samaritan Hospital in DuPage County. The plaintiffs filed their lawsuit in Cook County, where the healthcare group that owns Good Samaritan Hospital also operates several other hospitals. One of the doctors alleged in the complaint lives in Cook County.
Illinois court rules permitted the plaintiffs to select Cook County to litigate their case. However, the defendants moved to transfer the case to DuPage County, citing the equitable doctrine of forum non conveniens. This doctrine recognizes that an otherwise lawful forum might not be a convenient one. It permits courts to transfer a case to another forum based on considerations of “fundamental fairness and the sensible and effective administration of justice.” The Illinois Supreme Court’s opinion in Dawdy v. Union Pacific Railroad Co., 207 Ill.2d 167 (2003), indicates that the state’s high court takes a dim view of forum shopping. Some deference is owed to the plaintiff’s choice of forum, but when the plaintiff does not reside in the chosen forum and the incident did not occur in the chosen forum, then the amount of deference accorded the plaintiff’s choice will be minimal.
Technology Convenience Aside, Public Has Interest in Proper Forum
The trial court in Adamian v. Balash ruled that, on balance, the alleged private inconveniences of litigating the case in Cook County were not serious enough to overrule the plaintiff’s choice of forum. But the appellate court reversed, finding that the trial court had given insufficient weight to the public’s interest in adjudicating the case in DuPage County where the alleged malpractice occurred.
Yes, the court said, the ability of parties to handle significant aspects of pretrial discovery and other pretrial matters virtually should be taken into account when deciding whether the plaintiff’s choice of forum is a fair one. And, yes, the practical differences between litigating the case in Cook County or DuPage County are “minimal,” it said. Regardless of where the case is tried, the lawyers will be the same, the evidence will be the same, and the witnesses will be the same. “Transferring the case to DuPage County would not make it any easier or harder for the lawyers to request discovery, produce evidence, depose witnesses, and so forth,” the court observed. These are the considerations where remote depositions and virtual hearings could have tipped the analysis in the plaintiffs’ favor.
However, there were other factors in play: considerations that the court called “public interest factors.” These included society’s interest in deciding controversies locally, the unfairness of imposing the burden of jury duty on residents of a forum with little connection to the litigation, and the administrative difficulties caused by adding litigation to already congested court dockets rather than resolving the case at its origin. Cook County has scant interest in adjudicating this case because the plaintiff resides in Kane County and the defendants are overwhelmingly based in DuPage County, where the alleged malpractice occurred.
The court remarked in closing that its ruling ensured that finite judicial resources in Cook County were not expended on “nonresident litigation.”
The Adamian v. Balash case isn’t the first to consider the impact of virtual technologies on settled legal rules. Disputes involving remote depositions of nonparties have forced courts to decide whether remote depositions — conducted virtually with the witness at home and the questioning attorney hundreds of miles away — nevertheless violate Rule 45’s 100-mile geographic limit on compelled compliance with a deposition subpoena. “Where” precisely do virtual hearings take place? And may a party or nonparty — or their attorneys — claim unfairness when their objection is directed to a process that involves no travel at all? Novel legal issues can be expected to arise with greater frequency, as the availability of disruptive legal technologies calls into question traditional understandings of which aspects of civil litigation are fair and reasonable.
