The case of the day is Tansey v. Cochlear Ltd. (E.D.N.Y. 2014). The plaintiff, Jeanini Tansey, had a cochlear implant manufactured by Cochlear Ltd., a New South Wales company, to treat her deafness. She alleged that Cochlear had failed to comply with FDA requirements and that the device cracked and stopped working. The device had to be removed, which led, she claimed, to major nerve damage that led to her total disability. Tansey served requests for the production of documents on Cochlear, which moved for a protective order requiring first resort to the Hague Evidence Convention.

The judge denied the motion. The decision was noteworthy in its discussion of the location of the documents. While the location of the documents is one of the Aerospatiale factors, the judge noted that documents could not be transmitted electronically at the time of the Aerospatiale decision as they can today. This suggests a willingness to reconsider the physical location of documents as a factor. If we ask why the location of documents should matter to the analysis, the answer seems to be a concern about sovereignty: the courts in the forum state should hesitate before ordering a party to take actions in another state. Perhaps what the court is getting at is that today, it may well be that an employee of a foreign defendant’s affiliate in the United States (Cochlear’s US affiliate was also a defendant here) could retrieve the relevant documents from servers located in Australia at the touch of a button. This isn’t spelled out in the decision. But perhaps courts should be looking at questions like: does a person in the foreign state actually need to take any steps to comply with the US court’s discovery orders? If the documents are stored on computer servers, where are the servers located, and where are the people who have the ability to access the servers? In short, the more detailed these discussions the better, and the more likely the court is to really get at the concerns that underlie the location factor of the Aerospatiale analysis.