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




 !∀
206




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.

To continue reading

Request your trial