The Hague Convention’s role in cross-border ediscovery got a boost in the U.S. recently as a federal judge deemed that Hague Convention procedures hold equal footing with discovery rules in the Federal Rules of Civil Procedure. It remains unclear how this may ultimately affect three American companies—Whirlpool, Arconic, and Celotex—facing liability for their alleged role in the 2017 Grenfell Tower fire in London (that killed 72 people), but is certainly interesting from an ediscovery perspective. The three companies are accused of supplying defective building cladding and insulation thought to have “exacerbated the conflagration.”
Given the size of both the companies and potential damages, as well as the international dimensions of the case, any ediscovery in Kristen Behrens, ESQ., as Administratrix, et al. v. Arconic, Inc., et al. (CA No. 1902664 in the U.S. District Court for the Eastern District of Pennsylvania) is going to be especially complicated. At this stage of the litigation, the parties, are—among other things—arguing about whether the Pennsylvania court is the appropriate venue, with a motion from the defense to Dismiss for Forum Non Conveniens. And the ediscovery needed for this has already led to the court appointment of a cross-border discovery expert and a 20-page court order that cross-border ediscovery will need to conducted under the dictates of the Hague Convention of Taking Evidence Abroad in Civil or Commercial Matters.
If a motion to dismiss based on venue resulted in a ground-breaking legal affirmation of using the Hague Convention over the Federal Rules of Civil Procedure for cross-border discovery, what kind of ediscovery fireworks are going to be raised when the court starts getting into the meat of the case?
First, though, the parties are going to have to get through the ediscovery needed to resolve the motion to dismiss. Arconic maintains that the French Blocking Statute (FBS) prevents it from producing documents that were created by its French subsidiary. The court-appointed expert concluded “that the fact that the requested documents are stored on the server of the law firm of Arconic in New York should not exempt Arconic from compliance with FBS.” With the judge agreeing with the expert then that ediscovery of these documents will have to be sought via Hague Convention procedures, the ediscovery ball is, for now, in a different court.
In making his decision the judge noted that the Hague Convention carries equal weight with the Federal Rules of Civil Procedure—“it is not inferior nor is it superior.” In another memorandum, the judge “clearly stated that if the Hague Convention procedures do not result in complete production of the documents that are located in France, Plaintiffs are welcome to seek further relief in this Court.”
Whatever ediscovery outcome plaintiffs receive from the Hague Convention, it likely marks just the one of the first of many ediscovery disputes that will need to be settled in this case.