The doctrine of forum non conveniens is applied with great inconsistency by federal district courts. The forum non conveniens analysis is, to quote Justice Scalia, “multifarious,” but what weight should be given to those factors is left to the trial court to decide, with a de novo standard of review sometimes leading to vastly divergent outcomes in practice. Despite Justice Ginsberg’s famous dictum that the Sinochem case was a “textbook,” example he Supreme Court’s Sinochem decision has been little help in providing a standard of what a forum non conveniens dismissal should look like.  There are many questions left unanswered about the proper application of the doctrine.  What does an “adequate alternative forum” look like, anyway?

The Supreme Court, in setting guidelines for granting a motion for forum non conveniens, has required the existence of an alternate adequate forum. However, beyond the condition that an adequate alternate forum is one where the defendant is “amenable to process,” the Supreme Court has not provided much further guidance. Various factors have been examined to determine whether there is any empirical evidence of what may constitute an adequate alternate forum. For example, there is evidence that district courts in the Third and Fourth Circuits are less likely to find a foreign forum to be adequate. District courts are more likely to consider cases based on diversity jurisdiction to be adequate to resolve in a foreign forum than cases based on federal question jurisdiction. Defense litigants themselves indicate a preference of litigating in the United States versus litigating in countries that lack civil liberties, lack political rights, are politically unstable, have ineffective governments, disregard the rule of law, cannot control corruption, and are not as economically developed. In addition, district courts have been less likely to find an adequate forum in countries with these conditions. Ultimately, there is not evidence that would suggest the legal system in another country, the foreign language spoken, or the amount in controversy have an effect in influencing a district court’s view on the adequacy of the foreign forum.[1]

Although Sinochem reaffirmed the lowered presumption in favor of a foreign plaintiff, there is still little guidance otherwise as to how the factors of a forum non conveniens analysis should be weighed against one another.  As is illustrated by the contrast among the cases discussed earlier, the high degree of judicial discretion renders it almost impossible to define precisely the “multifarious factors” that go into the forum non conveniens analysis.  There is no meaningful yardstick against which to compare a “textbook” case for an immediate forum non conveniens dismissal.  But why should this be a concern?  Some might argue that it would serve the interest of justice to grant the district court judge a wide berth for discretion.

As it stands, the doctrine of forum non conveniens presents an unnecessary obstacle to both parties in cases where it is an issue, and the absence of stricter appellate oversight directly facilitates this inefficiency.  In Sinochem, the Supreme Court has given the lower courts a tightened up version of the forum non conveniens analysis, but left them without the equipment necessary to properly oversee its inevitably inconsistent application.  In the wake of Sinochem, which reaffirmed the lowered presumption in favor of a foreign plaintiff in forum non conveniens analyses, the need for further clarification of the doctrine has already arisen.  This is already reflected by the competing interpretations of the “textbook” language, and more such ambiguities are likely to be found in the broad language of the Sinochem opinion.

Though there may be something to be said about the ease with which the current standard accommodates diplomatic concerns, it is hardly clear that this would satisfy the multifarious analysis as intended by the Sinochem court.  It has been observed that “if inconsistency is the rule – would it not be just as well for the parties to select some other method (perhaps flipping a coin?) to decide the outcome?”[2]  Currently the doctrine of forum non conveniens stands as an impediment to the important goals of predictability and consistency, and thereby affects the very foundation of fairness and efficiency on which the judicial process is based.  Furthermore, since there is no evidence that the competing goal of conservation of judicial resources (by means of docket clearing) is being advanced, it can hardly be said to justify of the problems of the doctrine in its present incarnation.


[1] Michael T. Lii, An Empirical Examination of the Adequate Alternative Forum in the Doctrine of Forum Non Conveniens. 8 Rich. J. Global L. & Bus. 513 at 551 (2009).

[2] Robert J. Thornton and Perry A. Zirkel, The Consistency and Predictability of Grievance Arbitration Awards, 43 Industrial & Labor Relations Review 294.

The modern doctrine of forum non conveniens

Forum non conveniens, literally “the forum not coming together,” is a common law doctrine by which a suit must be dismissed if the choice of forum, because of its geographical location, presents an undue burden on one or more of the parties.  In its most recent ruling on the subject, Sincohem Int’l v. Malayasia Int’l Shipping,[1] the Supreme Court offered a new synthesis of the federal doctrine of forum non conveniens.  In addition to resolving the central legal issue of case,[2] the unanimous opinion of the Court offered a compelling dicta: that the Sinochem case presented a textbook example of a forum non conveniens dismissal.

Since 2007 when Sinochem was decided, much has been made of the “textbook” language, as it seemed to go a long way toward clarification of the murky circumstances that warrant a forum non conveniens dismissal.   Indeed, the most pernicious problem surrounding the doctrine is the utter lack of consistency and predictability endemic to forum non conveniens litigation.  However, as we can plainly see from a new crop of forum non coveniens wildly divergent litigation, this problem has not be solved.

Two recent federal trial court cases make this point salient.  The wrongful death case arising from the Air France 447 crash was recently dismissed:

The U.S. District Court for the Northern District of California dismissed the plaintiffs’ first suit in October 2010, accepting the airline’s forum non conveniens argument that France was the natural jurisdiction for cases arising from the crash of Flight 447, given that most of the defendants were French.

[…]

The plaintiffs tried to get around this argument by dropping all French defendants from the suit, naming as defendants only the U.S. companies that manufactured various components to the crashed Airbus 330. As such, the plaintiffs argued that France was no longer an available venue for their complaint.

The San Francisco-based court rejected this ploy saying that plaintiffs “cannot purposefully defeat the availability of a foreign forum and then assert unavailability to defeat forum non conveniens dismissal.”[3]

Contrast that case with the highly politicized New York case Keren Elmaliach v. Bank of China Ltd.:

In Keren Elmaliach v. Bank of China Ltd., 102026/09, New York Supreme Court Justice Barbara R. Kapnick ruled that while banks generally have no duty to protect non-customers from intentional wrongs committed by its customers, the plaintiffs had alleged facts suggesting that the state-owned Chinese bank was specifically told that it was funding terrorism and took no action. Kapnick also refused to dismiss the case on forum non conveniens grounds.[4]

The differences of outcome in these two cases is striking.  For the point of view of a  forum non conveniens analysis, there is little difference if evidence is to be had in France or China.  Indeed, China is about as far away from New York as France is from California.  The same difficulties are present in either case, so why did opposite results occur?  If there is truly a “textbook” example of a forum non conveniens dimissal, then surely it ought to serve as a useful yardstick for measuring the likelihood of such a dismissal.  Yet, there is no consistency nor predictability to be had, and as will be shown in the course of this paper, this is a direct result of the failure of the forum non conveniens doctrine to keep up with changing technology, and a failure of adequate appellate oversight of a doctrine that permits too wide a berth for the discretion of the trial court.

Prerequisites for a forum non conveniens dismissal

The doctrine of forum non conveniens allows a case to be dismissed before a hearing on the merits, even when the court might otherwise have valid jurisdiction.[5]   In order to dismiss a case on the basis of forum non conveniens the trial court must determine that there are practical considerations which render the location of the court “excessively burdensome.”[6]   The trial judge is permitted wide latitude in making the determination whether or not to dismiss on grounds of forum non conveniens, with little room for appellate supervision.  With surprisingly little guidance or oversight coming from the courts above, there is a great deal of disparity and unpredictability in the application of this doctrine. However, some of the major Supreme Court cases have attempted to clarify these muddied waters.

To determine if a case ought to be dismissed under the doctrine, the trial court judge must first ascertain whether or not an alternative forum exists in which the plaintiff’s case can be heard; if not, a forum non conveniens motion cannot go forward.  If there is determined to be an adequate alternative forum, the judge then must apply a balancing test to decide if dismissal is appropriate because of the practical considerations resulting from the location of the litigation.  In this analysis there are a number of factors relating to both the “public and private interest” which the judge must take into consideration before deciding if the practicalities of the forum warrant the dismissal of the case.[7]   These factors can include the location of evidence, the hardship which litigating in the forum would present to the defendant, and the “relative means of the parties.”[8]   A court must weigh “multifarious”[9] factors to make its determination, in a process that can become clouded by the competing interests of the plaintiff and the defendant, as well as overarching concerns of international diplomacy and judicial economy.

The origins of forum non conveniens           

In 1947 the Supreme Court decided Gulf Oil Corp. v. Gilbert,[10] which still stands as one of the seminal cases in the development of modern forum non conveniens doctrine.  In this case, an action brought in New York by a resident against a corporation based in Pennsylvania was dismissed on the basis on forum non conveniens.   It is here that we find the Court’s first analysis of the factors which make up the forum non conveniens balancing test, and this has served as the foundation for the development of forum non conveniens doctrine in later cases.  The Gilbert court observed that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”[11]

In order to procure a forum non conveniens dismissal, the burden of proof rests upon the defendant to demonstrate compelling evidence that the forum is too burdensome.[12]  In practice, however, it seldom works out this way.  Indeed, Gilbert marks not only the first time the Supreme Court laid down this proscriptive principle of deference towards to the plaintiff’s choice of forum, it was simultaneously the first exception to this principle.  Although plaintiff’s choice of forum is purported to be given much weight, the analysis of the Gilbert court nevertheless concluded that the trial court’s decision to dismiss on forum non conveniens was not an abuse of discretion.[13]

In the case of Piper Aircraft v. Reyno, a wrongful death action was brought in United States federal courts on behalf of the Scottish victims of an air crash against the American manufacturer in United States federal court.[14]   In the Piper decision, the Court seems to have attempted to moderate its approach to forum non conveniens with an acknowledgement that there is nothing in the ruling which compels courts to ignore the possibility of an unfavorable change in law.    In upholding the dismissal by the district court, Justice Marshall noted that a viable forum awaited the defendants, namely the courts of the United Kingdom, where “there is no danger that [the plaintiffs] will be deprived of any remedy or treated unfairly.”[15]

There is a substantial degree of continuity between Gilbert and Piper, insofar as the former served as the theoretical foundation for the latter, and the latter was thoroughly rooted in the former.  The reasoning in the Gilbert case appears to have been refracted in the lens of the Piper ruling, and as a result this has led to a trend in later decisions which runs counter to the original doctrine as espoused in Gilbert, and even Piper itself, both of which cautioned that the test must weigh greatly in favor of the defendant in order to tip the scales against the plaintiff.  Yet the distinction here is often too subtle to meet the threshold required for an abuse of discretion on the part of the trial judge.  Thus there is not much that can be done on the part of the appellate courts to curb this distortion of the doctrine by the trial courts.

Standard of review

The decision whether or not to dismiss on grounds of forum non conveniens “is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion[.]”[16]  This is a very important feature of the doctrine, as it serves to shield the decision of the trial court from appellate oversight, so long as the trial court’s reasoning is not so egregiously incorrect as to constitute an “abuse of discretion.”  The Supreme Court has held fast to this standard.  For instance in the Koster case the Court maintained that, with respect to the forum non conveniens balancing test, “far from laying down a rigid rule to govern discretion we said, ‘each case turns on its facts.’”[17]  It is because of this loose standard of review that forum non conveniens analyses of different courts under similar circumstances can often lead to wildly unpredictable and contradictory results.

The lack of consistency and predictability in forum non conveniens litigation

The court in Piper seemed to fear that if the choice of law became a conclusive or even substantial consideration, the courts would “have to compare the rights, remedies, and procedures available.”[18]  The fear being that these concerns would take undue primacy in the already clouded calculus that is the forum non conveniens balancing test.  The unfortunate result, however, is that “forum non conveniens cannot really be relied upon in making decisions about secondary conduct — in deciding, for example, where to sue or where one is subject to being sued. The discretionary nature of the doctrine, combined with the multifariousness of the factors relevant to its application, make uniformity and predictability of outcome almost impossible.”[19]  The lower courts do indeed take “rights, remedies, and procedures” into consideration, albeit with inconsistent results.

The telecommunication advances which have advanced globalization in recent decades have on the one hand increased the amount of complex transnational litigation and on the other have significantly eased the burden that this type of litigation once posed.  As the information age marches on, some of the decades-old concerns voiced by the courts which gave rise to the present incarnation of the doctrine seem out of date and anachronistic by modern standards.[20]  Appellate oversight of forum non conveniens doctrine has simply not kept pace with changes in technology.  The physical location of evidence or witnesses is the determinative factor it was in the days of Piper or Gilbert.  As Judge Newman wisely observed, “it will often be quicker and less expensive to transfer a witness or a document than to transfer a lawsuit.”[21]

Changing the standard of review

One possible solution to the broken forum non conveniens doctrine is to alter the standard of appellate review for forum non conveniens dismissals, viz. changing it from the current abuse of discretion standard to a standard of de novo review, allowing for heightened appellate oversight.  At present the doctrine attempts to accomplish two conflicting goals, and in the process becomes susceptible to a vast disparity in interpretation.  And indeed, this schizophrenic nature of forum non conveniens was acknowledged in the Sinochem decision, where the Supreme Court felt it necessary to provide the lower courts something of a roadmap to this confused doctrine.

The Sinochem test streamlines the forum non conveniens analysis into three prongs, yet makes no provisions for its consistent application, and so the result is really no different that before, the application of the test still remains in the hands of the trial court alone, which, as we have seen, leads to unpredictable, and often contradictory, results.  As one commentator observed, the forum non conveniens balancing test “must weigh heavily in favor of the defendant before a court may dismiss, and the appropriate inquiry is not whether the trial court has reasonably balanced the factors, but whether the trial court’s balancing was correct.”[22]

Changing the standard of review would not limit the district court judge’s authority to dismiss based on forum non conveniens should the case so warrant.  A de novo standard would ensure that the analysis underlying the dismissal has been applied properly and in accordance with the standard as set out in Sinochem.  Thus, changing to a de novo standard of review ought to eliminate many of the difficulties posed by the doctrine in its present form. Otherwise, under the current regime of abuse of discretion review, the Sinochem ruling becomes yet another note in the multifarious chorus of forum non conveniens factors.  Short of implementing this new standard of appellate review there are no measures in place to assure that the correct weight is given to each factor of the balancing test and it is difficult to see how the Sinochem ruling will be enforced at all.

 

Conclusion

In a global community the number of international lawsuits brought in United States courts have inevitably increased, and in these sorts of cases the doctrine of forum non conveniens often occupies a place of central importance.  A forum non conveniens dismissal carries with it the potential that the case might never be heard at all.  Likewise, the rejection of a legitimate forum non conveniens motion can bring about a great deal of unnecessary litigation. Clearly this sort of inconsistency in application can be very unfair to plaintiffs and defendants alike, and is not what we want in our judicial system.

This presents a pressing public policy concern, and although the Sinochem decision did much to clear up procedural issues, the forum non conveniens analysis itself remains subject to only the loosest of oversight.  Although the rule of law set forth in Sinochem does help to put a finer point on the issue, it does not seem likely to change the current state of affairs unless further measures are taken. A change in the standard of review from abuse of discretion to de novo seems to be the most effective solution to the problem.  This would be the most effective way to correct the disparity and ensure that the proper balancing of factors is being made in the trial court’s forum non conveniens analysis.  It is imperative that this problem be addressed in order to properly oversee which cases truly warrant a forum non conveniens dismissal and which do not.


[1] Sinochem International Co., Ltd. v. Malaysia International Shipping Corporation, 549 U.S. 422 (2007)

[2] A district court has discretion to respond at once to a defendant’s forum non conveniens plea, and need not take up first any other threshold objection. In particular, a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is the more suitable arbiter of the merits of the case. Id. at Pp. 5–12.

[3] Travis Sanford, Court Again Bars Case Over Air France Crash, June 21, 2011 http://www.courthousenews.com/2011/06/21/37561.htm

[4] Brendan Pierson, Judge Allows Exploration of Bank’s Role in Terrorism, July 18, 2011, http://www.law.com/jsp/article.jsp?id=1202501543028&Judge_Allows_Exploration_of_Banks_Role_in_Terrorism

[5] Sinochem, 127 S. Ct. at 1190-1191.

[6] Wiwa v. Royal Dutch Petroleum Co., et. al., 226 F.3d 88 (2d Cir. 2000).

[7] Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).

[8] Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 341 (S. D. N. Y. 2003).

[9] American Dredging Co. v. Miller, 510 U.S. 443 (1994), 455.

[10] Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

[11] Id. at 502 – 509.

[12] Strategic Value Master Fund, Ltd. v. Cargill Fin. Serv. Corp., 421 F.2d 741, 754 (S. D. N. Y. 2006).

[13] Gilbert, 330 U.S. at 509-512.

[14] Piper, 454 U.S. at 254.

[15] Id. at 255.

[16] Id. at 257.

[17] Koster v. (American) Lumbermens Mut. Casualty Co., 330 U.S. 518, 528 [citation omitted].

[18] Piper, 454 U.S. at 251.

[19] American Dredging, 510 U. S. at 443.

[20] David W. Robertson, The Federal Doctrine of Forum Non Conveniens: “An Object Lesson in Uncontrolled Discretion, 29 Tex. Int’l L.J. 353, at 367. Illustrative of the problems that the doctrine of forum non conveniens represents as something of a judicial relic is Professor Roberston’s observation: “In 1947 the Gulf Oil Corporation 112 Court was persuaded that serious inconvenience would result from bringing a defendant to trial in New York on a case that belonged in Virginia. Consider what would have been involved in handling a Virginia matter in New York in that era. We had no commercial jet travel, no personal or office computers, no photocopy technology, no fax machines. Clerks and secretaries did not have electric typewriters, or even ‘white-out’ substances — we used manual typewriters and erasers.”  It is not simply that the old decisions are “out of touch” with the fast pace of the modern era, rather that the emphasis placed on these on these concerns is weighted too heavily in the forum non conveniens analysis.

[21] Calavo Growers of California v. Belgium, 632 F.2d 963, 969 (2d Cir. 1980)  (Newman, J., concurring), cert. denied.  Judge Newman goes on to opine that “[j]et travel and satellite communications have significantly altered the meaning of “non conveniens.”

[22] Jacqueline Duval-Major, One-Way Ticket Home: the Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 Cornell L. Rev. 650, 684 (1992).

I commented on seeing this crisis coming over a year and a half ago, and I take no pleasure in seeing it borne out.  Via H&J, a recent report published in the Duke Law Journal states:

Sanction motions and sanction awards for e-discovery violations have been trending ever-upward for the last ten years and have now reached historic highs. At the same time, the frequency of sanctions against counsel for e-discovery violations, though small in number, is also increasing. Although serious e-discovery misconduct by parties and counsel should continue to be the subject of sanctions, appropriate consideration should be given to the complexity of e-discovery in ruling upon the increasingly frequent e-discovery sanction motion.

The e-discovery process is indeed complex.  But it is possible for a prudent attorney to avoid an ethical lapse with sufficient diligence and a thorough understanding of the technology involved in the process.  See, for instance, the Qualcom case:

One common but easily avoided e-discovery trap involves the failure to properly oversee the production of electronically stored information.  Courts are increasingly willing to sanction attorneys for failing to make “reasonable inquiry” into their clients’ production of electronically stored information during discovery.

[…]

The Qualcomm court determined that some of Qualcomm’s attorneys “assisted, either intentionally or by virtue of acting with reckless disregard for their discovery obligations” in Qualcomm’s discovery violations. While there was no direct evidence that Qualcomm’s attorneys helped to conceal damaging emails, the court found that the attorneys “contributed” to the discovery violation because they chose “to accept the unsubstantiated assurances of an important client that its search was sufficient” and ignored warning signs that Qualcomm’s document search and production were inadequate. The court imposed considerable sanctions against both Qualcomm and its attorneys because the attorneys did not make a “reasonable inquiry” into Qualcomm’s discovery search and production.  In addition to substantial monetary sanctions against Qualcomm, the court referred the sanctioned attorneys to the state bar for investigation and possible sanctions and ordered the attorneys to participate in a comprehensive discovery program to identify the failures in their case management and discovery protocol.

from Navigating E-Discovery: How to Avoid Common Pitfalls

What happens to a civil complaint where the opposing party cannot be served?  Such is often the case is divorces, what we call a “dissolution of marriage” action here in Florida, where the party seeking the divorce often has not had contact with the opposing party and may even be unaware of their whereabouts.  The answer is found in a form of service of process known as “constructive” service.

In order for a court to obtain jurisdiction over dissolution of marriage cases, proper service of process must be made upon the respondent.  Dissolutions of marriage are actions in rem, and thus the res of the action over which the court asserts jurisdiction is the marriage itself.  Therefore the court does not need personal jurisdiction over the respondent to dissolve a marriage; the court merely requires jurisdiction over the marriage itself, or one of the parties to the marriage (the petitioner).

Although the court needs no personal jurisdiction over the respondent, service of process upon the respondent is still required in order that the court to obtain a valid judgment over the res of the action.  In cases where the respondent cannot be found, and substituted service of process[1] cannot be made on an appropriate party, it is still possible to effect constructive service upon the respondent by means of service by publication.  Service by publication can only be had for proceedings in rem.[2]

An affidavit of diligent search and inquiry is a “condition precedent to service by publication.”[3] Diligent search and inquiry is essential to any attempt at constructive service.[4] The last known address of the defending party must be contained within the affidavit.  But what exactly constitutes a “diligent search and inquiry” with respect to service of process?  The answer is not as clear as one might like it to be, and as I will go on to show, this lack of clarity can be quite problematic when it comes to ensuring due process for respondents.


[1] “Substituted service and constructive service have not always been distinguished by the courts.” Trawick’s Florida Rules and Practice, Section 8:19, at page 165

[2] Id.

[3] Florida’s Statute Title VI, Chapter 49.031

[4] Trawick’s, supra N1, at page 169

That’s a lot of hyphens in that title, huh?  But well worth it!

As we all know, discovery is expensive, and the massive volume of electronically stored information (ESI) can make it even more so.  Thus cost-shifting provisions of the rules of civil procedure can often make or break the viability of a case.  This can  pose an especial burden on non-parties:

“When non-parties are forced to pay the costs of discovery, the requesting party has no incentive to deter from engaging in fishing expeditions for marginally relevant material. Requesters forced to internalize the cost of discovery will be More inclined to make narrowly-tailored requests reflecting a reasonable balance between the likely relevance of evidence that will be discovered and the costs of compliance.” Linder a Calero-Portocarrero, 183 F.R.D. 314, 322-23 (D.D.C. 1998).

The federal case law in this area appears to unsettled in the area, but in order for a non-party to shift the costs to the requester requires that the discovery be unduly burdensome.  There are many factors considered by the court to determine is a discovery request rises to such a level:

Questions of undue burden invariably lead to questions of cost shifitng… the Northern District of California sets forth eight factors in determining whether to shift cost to the requesting party: (1) the scope of the request; (2) the invasiveness of the request; (3) the need to separate privileged material; (4) the non-party’s financial interest in the litigation; (5) whether the party seeking production of documents ultimately prevails; (6) the relative resources of the parry and the non-parry; (7) the reasonableness of the costs sought; and, (8) the public importance of the litigation. The Sedona Conference(R) Commentary on Non-Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197 at 200 (Fall, 2008).

Standing in marked contrast to the FRCP, the NY CPLR provides for automatic cost-shifiting with respect to nonparties.  According to CPLR Section 3122d, “the reasonable production expenses of a nonparty witness shall be defrayed by the party seeking discovery.”

Complex civil litigation often hinges on discovery, and the discovery scheme of the Federal Rules of Civil Procedure has traditionally revolved around a cost benefit analysis, with the cost shifting to the requesting party if production is unduly burdensome. The advent of the new e-discovery rules continue this, as provided in FRCP 26(b)(2)(B): “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

This naturally raises the question, what exactly does “reasonably accessible” mean?

The “reasonably accessible” limit reflects worry about e-discovery’s “enormous costs … becoming the single most expensive facet of litigation.” The cost of e-discovery has two key components: (1) quantity – with businesses exchanging 2.5 trillion e-mails annually, 2 million at a typical company, and with computer files often remaining recoverable after deletion, the amount of attorney time needed to review discovery, and the potential for discovery disputes, has increased; and (2) inaccessibility – digital data “can be expensive or virtually impossible to recover” due to “outmoded storage media and software, and dispersion of information.” …[E]-discovery can cost tens or hundreds of thousands of dollars in even fairly typical cases[.]
Scott A. Moss, LITIGATION DISCOVERY CANNOT BE OPTIMAL BUT COULD BE BETTER: THE ECONOMICS OF IMPROVING DISCOVERY TIMING IN A DIGITAL AGE, 58 Duke L.J. 889, 894 (March, 2009).

Of course, nothing in law is that simple. What is that important piece of discovery isn’t reasonably accessible? FRCP 26(b)(2)(B) goes on to say that “the court may nonetheless order discovery from such sources if the requesting party shows good cause.” However, it would seem that the “good cause” standard is anything but standard:

The Federal Rules of Civil Procedure contain numerous good cause standards. It is a canon of statutory construction that a word used in multiple places in the same legal text should have the same meaning. Thus, the various good cause standards in the Rules should receive the same interpretation. But they do not. […] Even within the more limited universe of discovery rules, there is no single definition of good cause. A party seeking discovery of information that is not relevant to any party’s claims or defenses but is relevant to the subject matter of the action must show good cause pursuant to Rule 26(b)(1); a party seeking a protective order limiting discovery must demonstrate good cause pursuant to Rule 26(c); and a party seeking to conduct an adverse medical examination of another party must demonstrate good cause pursuant to Rule 35(a). Although these good cause standards all appear in the discovery rules, they have each been interpreted differently. As discussed above, the Rule 26(b)(1) good cause standard is weak and does not pose a significant hurdle to parties seeking discovery.
Henry S. Noyes, GOOD CAUSE IS BAD MEDICINE FOR THE NEW E-DISCOVERY RULES 21 Harv. J. Law & Tec 49 at 74-75, (Fall, 2007).

Electronically stored information is hardly a novelty by anyone standards, but in the federal law of discovery it is still a very new concept indeed. It would appear there are still a few kinks that need to be worked out.

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