Has Technology Changed the Application of Forum Non Conveniens?

Why this Common Law Doctrine Should Rebalance the Importance of Its Factors.

For decades, litigants have been relying on the doctrine of Forum Non Conveniens to argue that their cases should be adjudicated in another forum that may hear the case more conveniently. Courts usually use a balancing test set forth in US Supreme Court’s Guil Oil and Piper decisions to determine whether the proposed another forum is more convenient than the one selected by the plaintiff. The traditional balancing test may start to weigh some factors more heavily than others due to recent advances in technology.

Under the doctrine of Forum Non Conveniens, a court has discretionary power to dismiss a case when a court in another jurisdiction is determined to be the more appropriate or convenient forum for hearing the case.[1] The Supreme Court, in its 1947 Gulf Oil opinion, adopted this doctrine and set forth a test in determining whether a case should be dismissed under Forum Non Conveniens. The Gulf Oil court explained that courts should consider different interests and factors in relevant analysis; however, the court noted that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”[2]

The Gulf Oil court further explained that the court should balance the private interest factors and the public interest factors. The private interest factors include:

the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action…other practical problems that make trial of a case easy, expeditious and inexpensive… [and] the enforceability of a judgment if one is obtained.[3]

The public interest factors include:

administrative difficulties caused by court congestion; burden of jury duty “upon the people of a community which has no relation to the litigation;” “holding the trial in their view and reach rather than in remote parts of the country where they can learn it by report only” when the case would “touch the affairs of many persons;” the desirability the “local interest in having localized controversies decided at home;” the “appropriateness…in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.”[4] 

In 1981, the Supreme Court revisited Forum Non Conveniens in Piper in the context of transnational cases.[5] The Piper court noted that while Gulf Oil held that “the plaintiff’s choice of forum should rarely be disturbed,” “the central purpose of any Forum Non Conveniens inquiry is to ensure that the trial is convenient,” and that “a foreign plaintiff’s [choice of forum] deserves less deference.”[6] Additionally, the Piper court held that “[a]t the outset of any Forum Non Conveniens inquiry, the court must determine whether there exists an alternative forum.”[7]

Following Gulf Oil and Piper, federal courts have adopted a two-step analysis when analyzing Forum Non Conveniens motions. First, the court should determine whether there is an available alternative forum. If there is one, then the court determine whether “adjudication in that forum best serves the convenience of the parties and the interest of justice” by examining the factors set forth in Gulf Oil.[8] Most state courts similarly use this framework to analyze Forum Non Conveniens; and while some states diverge from federal framework, most consider factors that are the same as or substantially similar to the Gulf Oil factors.[9]

There is an extensive literature criticizing Forum Non Conveniens.[10] Specifically, it has been criticized for “its poor design and overbroad discretion, the combination of which provides too little guidance for judges and thus too little predictability for parties,” dating back to Justice Black’s dissent in Gulf Oil.[11] Additionally, some of the Gulf Oil private interest factors were criticized for being outdated because of technological advancements, even before the COVID-19 pandemic, in the context of transnational cases where the time difference and long distance pose significant challenges.[12]

The question of how technology could change or has changed the Forum Non Conveniens analysis is even more relevant after COVID-19 made videoconferencing the new normal. One commentor suggested that “[i]f videoconferencing tends to equalize party conveniences between two forums, then both the presumption [if favor of the plaintiff’s choice of forum] and its rebuttal should have less force,” and that videoconferencing’s impact “might mean diminishing the importance of the private convenience factors substantially, such that the public factors take on a much more significant role in the calculus.”[13]

Recent decisions suggest that courts around the country have differing views on whether technological advancements significantly impact the Forum Non Conveniens analysis or not. For example, the Pennsylvania Supreme Court, in a recent 2025 decision concerning an attempt to transfer the case from one county to another county within the state on Forum Non Conveniens grounds, rejected the plaintiffs’ argument that “no distance is necessarily burdensome because modern technology allows witness to testify remotely.[14] The court stated that “virtual court appearance is a valuable tool when live, in-person proceedings cannot occur….But it is not an adequate substitute in the ordinary course.”[15] The court “reject[ed] virtual court appearance as a universal solution to the problems of witness hardship that are recognized within the doctrine of Forum Non Conveniens,” highlighting “the drawbacks inherent in the technology.”[16] The court then pointed out that “[l]ive, in-person court proceedings do not suffer from frustrating connectivity problems, inadvertently muted microphones (or sounds captured on microphones that should be muted), or video feeds stuck on comical camera filters” and opined that “[v]irtual court appearance is, at best, a backup solution when the alternative is unavailable. It is preferable in every regard for the parties, the witnesses, the attorneys, the judge, and the jury to be in a room with one another.”[17] The court further pointed out that “[i]f every assertion of the oppressiveness of a venue is met with a suggestion of virtual litigation, then the doctrine of Forum Non Conveniens would meet its end….We decline the plaintiffs’ invitation to depart so radically from well-established law.”[18]

In another case involving intrastate application of Forum Non Conveniens, the Illinois Appellate Court similarly rejected the argument that modern technology has made Forum Non Conveniens “obsolete,” but acknowledged that developments in technology should be taken into account in relevant analysis. Specifically, the court stated:

[T]he [plaintiffs] argue that we should affirm the denial of the motion to transfer because the doctrine of Forum Non Conveniens is “obsolete” with respect to intrastate transfers due to modern technological advancements that have made it easier to travel and communicate and enabled activities that are traditionally done in person, such as depositions and court proceedings, to occur remotely via videoconference. To the extent that these developments bear on the factors relevant to a Forum Non Conveniens analysis, we agree that they should be taken into account. However, we are not at liberty to deem the doctrine obsolete or alter its contours. For more than 40 years, the Illinois Supreme Court has held that the doctrine of Forum Non Conveniens is appropriately applied to both interstate and intrastate transfers.[19]

More recent Illinois cases continue to recognize that technology has changed the Forum Non Conveniens analysis, especially when it comes to the ease of access to evidence and issues relating to attendance of court hearings and depositions.[20] However, at least one court highlighted in-person testimony cannot be replaced, and the “difficulty in securing [the] in-person testimony at trial…weigh heavily in favor of dismissal.”[21]

When analyzing the interstate application of Forum Non Conveniens, some courts recently took the more traditional approach and put significant weight on the physical location of the witnesses and evidence without mentioning the impact of technology advancements.[22] Other courts have recognized that technological advancements have made certain factors less significant, but not irrelevant.[23] Lastly, there were courts that implied location of witnesses and ease of access to evidence are insignificant or even irrelevant.[24]

Lastly, in the context of transnational cases, recent decisions indicate that courts generally recognize that the forum in the foreign jurisdiction is more convenient when the majority of witnesses and evidence are located in that jurisdiction, despite the availability of technology.[25] We were only able to locate one post COVID-19 case where the court concluded that the private interest factors do not weigh in favor of litigating the case in a foreign forum, partially because the court determined that to the extent certain witnesses of the defendants cannot testify at trial because of their residence, they can provide testimony through live video conference.[26]

Those recent decisions discussed above do not appear to answer the question of whether technology has changed the application of Forum Non Conveniens because of the different views in those decisions; instead, they provide a perfect example of what Justice Black predicted almost 80 years ago: that Forum Non Conveniens analysis under the Gulf Oil framework “will inevitably produce a complex of close and indistinguishable decisions from which accurate prediction of the proper forum will become difficult, if not impossible.” Accurate prediction is indeed impossible when some courts decline to recognize the significance of technological advancements when analyzing Forum Non Conveniens, while other courts conclude that such technological advancements already made at least some of the Gulf Oil factors irrelevant in the context of interstate Forum Non Conveniens, when the compete venues are usually further apart.  

These inconsistencies are unlikely to persuade most judges to “depart so radically from well-established law”[27] and make Forum Non Conveniens a relic of the past. Therefore, the doctrine is likely here to stay for at least the foreseeable future; on the other hand, some of the Gulf Oil factors are likely to take on more importance in the analysis as others take a more diminished role.

The first private interest factor, the relevant ease of access to sources of proof, appears to be the most likely to have its importance diminished. Some courts have already found that this factor is largely irrelevant when the evidence is in electronic format, which is usually the case in more recent controversies. In the rare situation where the evidence cannot be transferred into electronic format, or cannot be moved, such evidence likely constitutes only a small portion of the evidence and should not play a significant role in determining whether to transfer venue.

The “availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses” factor appears to have lost some significance too, as videoconferencing makes remote appearance possible. Some of the counterarguments here, exemplified by the criticism of relevant technology in Tranter,[28] focus on the reliability of such technology. At least some of those reliability issues are caused by inadequate infrastructure, and improved technology in courtrooms should make such issues less frequent.[29] However, when live testimony is of significance,[30] the attendance of witnesses and the associated cost should have more weight in determining whether transfer of venue is appropriate.

These authors believe that what the private interest factors may have lost in terms of relevance or importance to the Forum Non Conveniens analysis due to technological developments should be replaced with an increased emphasis on the importance of the public interest factors—factors that may be the last bulwark against even more rampant forum shopping that already exists. Public interest factors such as avoiding court congestion, burdens of jury duty on people with no relation to the litigation, local interest in local controversies, application of a state’s law in that state, are not directly impacted by technological advancements. And there may be significantly more litigation filed in forums unrelated to the dispute, which imposes burdens on citizens with no connection to a controversy, if litigation is deemed to be relatively convenient for the parties pretty much anywhere due to advancements in technology (the private interest factors). This is especially the case given the US Supreme Court’s recently expanded view of personal jurisdiction.[31] Therefore, to rebalance the Form Non Conveniens test to account for certain private interest factors potentially being seen as having diminished importance and to avoid incentivizing forum shopping without fear of repercussions, the public interest factors should be weighed more heavily than the private interest factors going forward.