Winning from the Beginning: International Electronic Discovery in Commercial Litigation and the Home Field Advantage of American Corporations

• Author: Eric Everson
• Position: College of Law, Florida Agricultural and Mechanical University
• Pages: 206-217

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Eric Everson

College of Law

Florida Agricultural and Mechanical University

ericeverson@hotmail.com

Abstract: As technology is increasingly integrated into every aspect of the

commercial environment, the amount of data ge nerated from each transaction multiplies.

Electronic discovery (eDiscovery) represents the colli sion of data and the law; in this paper,

the powerful influence of th e American judicial system is explored as it relates to the

pursuit o f digitally native file types for use in matters of litigation that transcend

international borders. Home of the Silicon Valley, the world’s biggest software companies,

and the cr eative epicenter of social media technologies, America has also emerged as a n

early leader in establishing eDiscovery practices that are shaping the way the world

manages electronically stored information (ESI). For business managers, eDiscovery

represents the highest spike i n litigation costs in decades and as such cor porate litigants

recognize the substantial financial risks of international electronic discovery. With each

new filin g, t he very nature of commercial litigation has evolved into a complex battle of

digital file types compounded by mountains of ESI. Wit h constitutional safeguards, statute-

based protections, and a leading position in developing the software and standards that are

defining international electr onic discovery, as a legal forum America o ffers a host of home

field advantages for commercial litigation.

1. Introduction

America is the world’s foremost leader in developing electronic discovery (eDiscovery) protocols and

procedures. Generally American corporations encounter international electronic discovery i n two

primary ways: those requests of foreign litiga nts via Ameri can courts or those productio n requests of the

corporation against a foreign litigant. Either way, American corporations have the home field advantage

when litigating matters of international electronic discovery.

Imagine that a multinational enterprise (MNE) oil company has an American business unit that is

organized as a corporation. The America corporation is involved with a complex transaction involving

the extraction of oil products from the African nation of Chad

1

. The American company works with a

boutique Chadanian oil en gineering company and has aided in the co-development of tho usands of .CAD

files. T hese files b ecome the matter of liti gation between the companies when it is alleged that the

Chadanian company made unauthorized modifications to the files which resulted in a degradation of

product quality that has cost the MNE in exce ss of $40 million U.S. dollars in additional r efinement costs.

Upon oral request, the Chadanian company denied the production request for the files and has created a

matter of international electronic discovery for the American corp oration.

In America, the prevailing currency of the co urts demonstrates that “…the discovery of electronic

records should be a cooperative process, wh ere litigants are expected to be candid and forthcoming, even

1

ChadNow: Chad’s Information Storehouse, http://www.chadnow.com/chad_economy/oil_in_chad.php (last visited

June 5, 2012). Petroleum exploration began in the 1970s. Oil was discovered in the Lake Chad basin and th e Doba

basin. Initially, Exxon, Chevron, Cono co, and Shell collaborated in oil exploration in Chad. Since then, there have

been numerous withdrawals, and today the consortium is made up of ExxonMobil, Petronas, and ChevronTexaco.

Exploitation activities were delayed during the civil war, which began in 1979, and final preparations for extraction

did not begin until the 1990s.