Is ESI Changing the Doctrine of Forum Non Conveniens?
Forum non conveniens is the doctrine of a court’s discretionary power to decline jurisdiction where another court may more conveniently hear a case. The location of relevant evidence is often an important factor in this analysis. The emergence and surge of ESI, or electronically stored information, may be shaping and changing the way our courts treat the doctrine of forum non conveniens. If all or most evidence is in electronic format that can be sent anywhere around the globe in a matter of seconds, does it matter where the data is physically located? The court looked at this issue, among others, in In Re: BP p.l.c. Securities Litigation, (S.D. Tex. June 18, 2014).
Plaintiff brought an action against Defendant BP in the United States, alleging that it wrongfully canceled a previously declared dividend following the Deepwater Horizon disaster. BP, a public company organized under the laws of England and Wales and headquartered in London, England, filed a Motion to Dismiss pursuant to the doctrine of forum non conveniens.
Defendant argued that all of its relevant evidence for the lawsuit was found in England, where its corporate records were routinely housed. Plaintiff conceded that most of BP’s relevant documents would be found in England. However, Plaintiff noted that producing the records in the U.S. would not be “oppressive” or “vexatious” for BP, as it was mostly electronic data. As such, Plaintiff claimed the location of the evidence should be accorded minimal weight. The court found that the evidence being physically in England should only slightly tip the scales toward BP, acknowledging the argument of Plaintiff (although ultimately disagreeing.)
After consideration of other factors including witness location and public policy, the court sided with BP to agree that England was a more convenient forum, mainly for public policy reasons.
In our technologically evolving society, this issue reminds us of another case where the court noted that ESI is changing how parties produce evidence: “ignoring the capabilities which ESI allows the parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals.” In re Domestic Drywall Antitrust Litig., WL 1909260 (E.D. Pa. May 12, 2014). We continue to watch the case law to see how ESI will affect the doctrine of forum non conveniens in modern litigation.
Did you know: By 2020, business transactions on the internet (business-to-business and business-to-consumer) will reach 450 million per day.