Forum Non Motion Fails In The Face Of Modern Litigation Technology
Keeping up with the modern practice of law could be the difference between winning and losing.
A few months ago, we covered a case that served as a sort of mirror image of Dominion’s suit against Fox News. Dominion Voting Systems is a Canadian company that brought suit against the U.S.-based Fox News, while in WE Charity v. CBC, a U.S. headquartered charitable organization brought a defamation claim against a Canadian broadcaster.
The CBC produced segments claiming that the charity misappropriated donor money… it did not. Hence the lawsuit filed in D.C. federal court. One might wonder why a plaintiff with any sort of choice would bring a defamation suit in the United States where the actual malice standard introduces an obstacle to relief unheard of in other jurisdictions. WE asserts that it felt the pain of the defamatory remarks in the U.S., where its fundraising efforts had to contend with false claims of impropriety. The charity also worried about the enforceability of a Canadian judgment (though the judge downplayed those concerns).
The Canadians also questioned the American venue and plopped a forum non conveniens argument into the motion to dismiss. WE had operations in Canada, the CBC aired its report in Canada, why not have the case in Canada?
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In an opinion issued last week, Judge Randolph Moss reaffirmed that plaintiffs are the masters of their own complaints, methodically breaking down the forum non claims and ruling forum OUI conveniens (yes, I know it’s Latin, but we’re talking about Canada here so let’s flex high school French muscles).
Of all the arguments Judge Moss considered in concluding that the CBC is not impermissibly inconvenienced by an American forum, one jumped out:
In its view, the presence of documentary evidence in Canada poses only a minimal hurdle to litigating this case in the United States, given the ubiquity of electronic discovery and the ease with which documents can be transferred between jurisdictions.
EDiscovery is transforming substantive legal standards. Decades ago, the forum non conveniens caselaw might’ve booted this case back to Toronto. Indeed, less than 10 years ago courts couldn’t quite pull the trigger on the idea that electronic data revolutionized the meaning of “convenient.” Yet reality always catches up with the courts eventually. We have documents in wholly American disputes getting reviewed in India… a document’s home jurisdiction doesn’t matter anymore.
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Legal technology is usually shunted off into a geek corner where a vanguard of tech savvy attorneys and staff fight a ceaseless battle for internal adoption, hyping efficiency in an industry that bills by the hour. But the fate of the case might actually hinge on these technologies.
Today it’s about document review, but communication tech is around the corner. In his opinion, Judge Moss dismissed witness domicile concerns citing the ease of travel between the U.S. and Canada, but the day is not far off that a judge points to the legal industry’s widespread adoption of virtual reality teleconferencing eliminating the need for witness travel altogether.
There are a lot of good reasons not to fall behind the tech curve in this job… add the success of your dispositive motions to the list.
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
