I wrote about the proposed bill back in May, and you can look back at that post as most of the changes proposed in the initial version of the bill have made it through to the approved version.
In the original bill, the General Assembly authorized a direct appeal to the NC Supreme Court from any final judgment of the Business Court.
b. In effect determines the action and prevents a judgment from which an appeal might be taken.
d. Grants or refuses a new trial.
I’m worried about the Supreme Court getting bogged down in deciding whether an interlocutory order really "affects a substantial right." The language regarding interlocutory appeals is identical to the language governing interlocutory appeals to the NC Court of Appeals. It seems like half of the decisions from the Court of Appeals go on for pages on that issue before deciding that the appeal before it doesn’t "affect a substantial right" and should therefore be remanded to the trial court. The Supreme Court may face the same quicksand.
But even so, this change will provoke more business-related decisions from the NC Supreme Court. That’s certainly a good thing. I’m at a loss to remember the last one — it might be Meiselman v. Meiselman, 307 S.E.2d 551, 309 N.C. 279 (1983), decided over thirty years ago.
Under the enacted law, the Business Court Judges will be required to issue a written opinion granting or denying a motion under North Carolina Rules of Civil Procedure 12, 56, 59, or 60, "or any order finally disposing of a complex business case" except for orders approving a settlement or a jury verdict. New G.S. §7A-45.3.
That’s a significant expansion of the Court’s opinion writing obligation. Currently, its only obligation to issue a written opinion is "upon final disposition of the case" per Rule 2.1(b) of the North Carolina General Rules of Practice.
And the Court currently issues many one or two paragraph orders denying motions to dismiss (per Rule 12) or for summary judgment (per Rule 56). Will those brief rulings constitute "written opinions" denying those motions, or will the Court need to engage in detailed discussion about why it is denying a motion?
The new law requires in G.S. §75A-4(b) that certain types of cases must be designated to the Business Court. Briefly, these are contested tax cases on appeal from the Office of Administrative Hearings, many cases falling within the Court’s jurisdiction in which the amount in controversy is at least $5 million, and cases involving regulation of pole attachments pursuant to G.S. §62-350.
On that $5 million threshold, the party drafting the pleading is obligated under an amendment to Rule 8 of the North Carolina Rules of Civil Procedure contained in the passed bill to state whether relief is demanded in that amount.
If the party filing a case which the statute requires be designated to the Business Court doesn’t do so, the Superior Court in the county where the case was filed must stay the case until the party who was required to designate it has done so. The original version of the bill allowed a dismissal without prejudice as an alternative. New G.S. §7A-45.4(g).
But the good news now for parties who designate a case, and then prevail, is that the designation fee will now be a recoverable element of costs. That’s in new G.S. §7A-305(d)(12). This change was lacking in the original version of the bill.


text:
1.The Burden Imposed by Electronic Discovery.
Email is a hybrid form of communication. Email affords employees the opportunity to communicate casually, as they would in a typical conversation, even though a permanent record may be created. People frequently take less care in composing email messages than they do when writing formal letters or memoranda, which may create potential problems in litigation. Employees also use email for a host of communications unrelated to their direct job-related responsibilities. The volume of irrelevant email therefore typically is staggering for most companies.
Although data mining software is making it somewhat easier to search for records when responding to discovery requests, the burdens and costs associated with electronic discovery may be quite high for most companies. Email may reside in multiple different locations within an organization, including on a network server, the hard drives of office computers assigned to both the sender and recipient of a message, back-up tapes, home or portable computers where email may be accessed remotely, and in hard-copy form (when messages are printed). A single message also may appear as multiple separate documents, if it has been forwarded to third parties.
Large companies bear disproportionate risks and burdens, in part because of the greater volume of email they generate. In addition, burdensome email discovery requests most frequently are propounded in securities fraud, tort and employment cases or in other lawsuits where individuals or small companies have sued a large entity. When big companies face each other in litigation, such requests are less commonly propounded or reasonable restrictions may be agreed upon by opposing counsel because both sides in the litigation face equivalent burdens in responding to electronic discovery requests.
2. Liability Risks Imposed by Electronic Discovery.
Whether a company intends to do so or not, its employees may be creating an invisible, digital paper trail that can be used against the company in court. Email, when printed in hard copy or stored electronically, is usually recognized as equivalent to a document. Rule 34 of the Federal Rules of Civil Procedure expressly provides that any party can request documents, such as "other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form." Email therefore generally is discoverable.
Federal Rule of Evidence 1001 treats email and other computer generated data as writings and recordings. Employee email frequently may be used against a company as a party admission. By contrast, depending on its internal policies, a company may not be able to introduce a comparable message if the email communication fails to satisfy the requirements for a "business record." See, e.g., Monotype Corp. PLC v. International Typeface Corp., 43 F.3d 443, 450 (9th Cir. 1994). Companies that adopt specific policies on email retention, however, should be able to establish that particular email messages were generated and retained in the ordinary course of business, which therefore should be admissible.
When used in litigation, an email message may create a false -- and potentially unduly prejudicial -- impression of a company's business practices. A hard copy printout of an email message may not accurately convey the tone, impression or level of care actually associated with its creation. Even when it does, it is not always apparent that the author of an email message was an authorized speaker, or "speaking agent," for a corporate employer.
Although prejudicial, employee email may be admissible. Evidence may be excluded in federal court when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. Fed. R. Evid. 403. As a practical matter, a court has wide discretion in determining whether otherwise admissible evidence should nonetheless be excluded on this basis. For example, in Kelley v. Airborne Freight Corp., No. 96-2057, 1997 U.S. App. LEXIS 23793 (1st Cir. Sept. 3, 1997), the First Circuit explained that, in reviewing a trial court's decision under Rule 403 for abuse of discretion, "[o]nly rarely -- and in extraordinarily compelling circumstances -- will [this court], from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect." Id., quoting Freeman v. Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir. 1988).
By far the largest number of cases in which email evidence has been introduced have involved employment-related disputes, including wrongful termination, employment discrimination and sexual harassment suits. A well thought out email policy and employee education may reduce the creation of needlessly harmful email evidence and reduce employee friction.
3. The Law of Document Retention.
Email messages are routinely received, stored, copied and deleted by companies on a daily basis. Under the spoliation of evidence doctrine, when evidence is allowed to spoil or be destroyed, or is simply not retained, an adverse party may be entitled to a jury instruction, or in extreme cases the entry of judgment, based on a presumption that the evidence was not preserved because it was not favorable to the party's position.
Spoliation has been described as "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation." Willard v. Caterpillar, Inc., 40 Cal. App. 4th 892, 907, 48 Cal. Rptr. 2d 607, 616 (1995) (citing other sources). Where the doctrine is recognized, spoliation of evidence may result in the entry of judgment, an adverse inference or merely an award of attorneys' fees, depending on the severity and significance of the destruction to the case at bar and the destroying party's intent.
A court may enter a range of sanctions, leading up to and including entry of default judgment, for a party's failure to comply with a discovery request and/or subsequent court order compelling discovery. See Fed. R. Civ. P. 37(b); see also, e.g., Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107 (S.D. Fla. 1987) (default judgment entered where relevant documents were destroyed at counsel's direction on the day he was served with the complaint and a request for production of documents); see generally Insurance Corp. of Ireland v. Compagnie des Bauxities de Guinea, 456 U.S. 694 (1982) (upholding the constitutionality of entering a default judgment as a discovery sanction). Sanctions may be imposed under Federal Rule 37(b) even where evidence was destroyed prior to the entry of a discovery order. See, e.g., Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991); In re: Air Crash Disaster near Chicago, Illinois on May 25, 1979, 90 F.R.D. 613, 620-21 (N.D. Ill. 1981).
Sanctions for document destruction also may be imposed for violations of a pre-trial scheduling order if the order specifically addressed the preservation of evidence. See Fed. R. Civ. P. 16(f); In re: The Prudential Insurance Co. Sales Practices Litigation, 169 F.R.D. 598 (D.N.J. 1996). Courts likewise have inherent authority to sanction litigants when a party has engaged in conduct which abuses the judicial process. Chambers v. Nasco, 501 U.S. 32, 43 (1991) (recognizing the inherent power of courts to impose sanctions because courts, in order to achieve the orderly and expeditious disposition of cases, must have the control necessary to manage their own affairs); Turner v. Hudson Transit Lines, Inc., supra, 142 F.R.D. at 72 (acknowledging the court's inherent power to sanction a party for spoliation of evidence); Capellupo v. FMC Corp., 126 F.R.D. 545, 550-51 n.14 (D. Minn. 1989) (sanctions for document destruction should be imposed pursuant to a court's inherent power, rather than under Rule 37). Where a discovery response fails to acknowledge spoliation of evidence because of a party's failure to make reasonable inquiry, sanctions may also be imposed pursuant to Rule 26(g). Turner v. Hudson Transit Lines, Inc., supra, 142 F.R.D. at 72, citing National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543, 554-55 (N.D. Cal. 1987).
In evaluating whether to impose the most extreme sanction of a default judgment as a discovery sanction, the court in Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 130 (S.D. Fla. 1987), held that it first had to find that: (1) the defendant acted willfully or in bad faith; (2) plaintiff was prejudiced by defendant's conduct; and (3) lesser sanctions would not serve the objectives of punishment and deterrence. Where a party is subject to a court order to preserve documents or compelling their production, and thereafter destroys documents subject to the order, more extreme sanctions are likely to be imposed. See, e.g., In re: The Prudential Insurance Co. Sales Practices Litigation, 169 F.R.D. 598 (D.N.J. 1996).
California, Alaska, Florida and Kansas have also recognized torts for intentional or negligent spoliation of evidence, while Georgia, the District of Columbia, Maryland, Missouri and New York have declined to do so. Willard v. Caterpillar, Inc., 40 Cal. App. 4th 892, 48 Cal. Rptr. 2d 607 (1995) (surveying and summarizing the law in other jurisdictions as of 1995), citing Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary's L.J. 351 (1995). Although the specific elements of the tort vary from state to state and in some cases are not well defined, common elements include: (1) pending or probable civil litigation, (2) defendant's knowledge that litigation is pending or probable; (3) willful destruction of evidence; (4) intent to interfere with plaintiff's prospective civil suit; (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit; and (6) damages. Willard v. Caterpillar, Inc., supra, 40 Cal. App. 4th at 910-11, 48 Cal. Rptr. 2d at 618, citing Foster v. Lawrence Memorial Hospital, 809 F. Supp. 831, 836 (D. Kan. 1992); and Smith v. Howard Johnson Co., 67 Ohio St. 3d 28, 615 N.E.2d 1037, 1038 (1993).
Whether the deletion of email should be deemed to constitute the destruction of evidence, entitling other parties in litigation to certain evidentiary presumptions, should depend on whether a message was deleted (1) pursuant to a company's consistently, and uniformly enforced policy on retention and destruction of email messages, or (2) before a specific discovery request was propounded or the party could reasonably have expected, based on the nature of the actual or reasonably anticipated litigation, that the message in question would be subject to discovery.
The existence of a document policy may under certain circumstances be deemed a mitigating factor in litigation when documents are destroyed pursuant to it, while a company's failure to have a coherent policy may be an aggravating factor. Compare Willard v. Caterpillar, Inc., 40 Cal. App. 4th 892, 921, 48 Cal. Rptr. 2d 607, 625 (1995) ("good faith disposal pursuant to a bona fide consistent and reasonable document retention policy could justify a failure to produce documents in discovery."), citing Carlucci v. Piper Aircraft Corp., 102 F.R.D. 472, 481-82 (S.D. Fla. 1984); Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 76 (S.D.N.Y. 1991) (destruction pursuant to a document policy evidenced negligence, rather than intentional conduct); with Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 123 (S.D. Fla. 1987) (The absense of a coherent document retention policy during the pendency of this lawsuit . . . was cited as leading to Apossibly damaging document destruction occurring in both routine and non-routine manners . . . .).
As a general rule, when a party destroys documents pursuant to routine procedures, no evidentiary presumption should be drawn about the destruction (assuming that the retention period is otherwise reasonable). See Smith v. Uniroyal, Inc., 420 F.2d 438, 442-43 (7th Cir. 1970). Likewise, no evidentiary presumption may be appropriate when documents are destroyed after a period of years. See Vick v. Texas Employment Commission, 514 F.2d 734, 737 (5th Cir. 1975). Although there is no magic number, the term of retention should be at least as long as any applicable statute of limitations or regulatory review period.
Case law suggests that any document retention policy, in addition to being neutral, should be adjusted over time. Counsel may need to override a document destruction policy when lawsuits are filed or appear likely to be filed, and should periodically revise the policy when new case law or statutes impose additional record retention requirements, or when a category of documents relates to matters which have been the subject of significant or repeated non-frivolous complaints by customers or other third parties.
Whether given documents need to be retained longer than the ordinary retention period because of the existence of actual or potential litigation may be a difficult judgment call, especially for a large corporation which may generate millions of documents at multiple locations around the world. The allegations of a complaint and specific document requests will be looked at most closely in evaluating whether a party was on notice, and therefore had a duty -- notwithstanding the terms of its document retention policy -- to retain specific material for use in litigation. Communications threatening litigation may also place a party on notice that it should retain certain documents.
On the other hand, even where a company has notice of an impending lawsuit, it may not have notice that certain categories of documents may be relevant. As explained in cases from the Southern District of New York, "no duty to preserve arises unless the party possessing the evidence has notice of its relevance." Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72-73 (S.D.N.Y. 1991), citing Danna v. New York Telephone Co., 752 F. Supp. 594, 616 n.9 (S.D.N.Y. 1990).
William T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984) (citations omitted), cited with approval in Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991).
Email, although classified as a document under the Federal Rules of Civil Procedure and Federal Rules of Evidence, should not be treated exactly the same way as a paper document for purposes of discovery. By its very nature, email is more ephemeral than formal written memoranda. As a hybrid form of communication, email messages frequently are more like telephone or face-to-face communications than official corporate documents. An order mandating preservation of all internal email communications during the course of a lawsuit thus would not be that different (in terms of burden and intrusiveness) from an order mandating that a corporation tape record and transcribe telephone conversations and live meetings. At the very least, a ruling compelling preservation of email could have a stultifying effect on business and is not warranted under case law intended to preserve -- rather than mandate the affirmative creation of -- documentary evidence.
Email also should be treated differently because otherwise a company's burden in litigation may arbitrarily be determined by the particular technology used by the company. Businesses which use UNIX-based email systems, which automatically purge messages once they have been read (unless a recipient affirmatively stores the communication) could have much lighter discovery burdens than comparably-sized businesses which employ Apple or Windows-based systems which automatically store email unless it is affirmatively deleted. It would be fundamentally unfair if the discovery system imposed wildly disproportionate burdens on individual litigants based solely on the particular software each runs.
Rules applicable to destruction of paper documents likewise should not be applied uncritically to all forms of electronic records. For example, a large percentage of corporate email should not be considered evidence "reasonably available" to a producing party, such that a party's failure to mandate retention of it (even though such email would not otherwise be reasonably available to the adverse party), may, because the email system is under a company's control, create an inference "that the evidence is unfavorable to the party who could have produced it and did not." See Lewy v. Remington Arms Co., 839 F.2d 1104, 1111 (8th Cir. 1987) (setting forth the test for finding spoliation of evidence), quoting E. Devitt, C. Blackmor & M. Wolff, 3 Federal Jury Practice and Instructions, 72.16 (4th ed. 1987). While email generally will be deemed to be under a company's control (unless its email policy grants employees ownership rights in messages sought in discovery), the overwhelming burden on a company to retain copies of all email messages as they are generated (in contrast to providing whatever historic email may exist in company files, for a given time period) is such that email generated on an ongoing basis should not be considered reasonably available to the producing party.
To reduce the risk of being subject to adverse rulings based on electronic document management, businesses should adopt email retention and destruction systems.
5. Reducing the Burdens of Litigation With an Email Retention and Destruction System.
Companies should adopt an email system, rather than merely a policy. A policy involves user discretion and is appropriate for document retention, as well as for delineating when email should be stored or filed. A system implies the use of technology to automatically purge all historic email (other than official communications which, pursuant to company policy, should be retained). A system also implies that a company's policy is merely one component of its overall strategy for managing electronic records, which should also include employee education to ensure that any policies are implemented routinely and systematically.
To minimize the risk of being subject to unreasonably broad court orders or retention obligations, companies should adopt email policies intended to delineate official company email, which should be treated as a paper document and subject to regular document retention policies, and personal or unofficial email, which should be routinely deleted. Although somewhat cumbersome, it is advisable to mandate that official email messages be printed in hard copy and filed, or stored electronically in special locations, within a reasonable time after a message is sent or received. Depending on the business and volume of email, that time period could be as short as a few weeks or as long as a few months. At regular intervals -- such as every Friday evening or every third Saturday -- email in all company inboxes and outboxes sent earlier than a pre-determined period of time (such as 60 or 90 days) should then be automatically purged. Because official email would be retained, a company adopting such a policy should not be subject to exposure for spoliation of evidence. By defining and distinguishing between official and unofficial email, companies also may minimize the risk that unauthorized communications among employees may later be used against a company in litigation.
In lieu of designating email as official or unofficial, which may place an unreasonable administrative burden on employees, some companies assign employees two separate email accounts -- one for official business and another for personal and/or administrative communications. This arrangement is easier to implement than a policy requiring employees to delineate between official and unofficial email, however a company which formally designates a given email account as a business account may have some obligation to retain email messages sent to or from that account, if messages are automatically stored electronically. Even if it establishes separate accounts, a company therefore may still find it advantageous to adopt a policy requiring employees to save or print and file certain categories of email communications.
An email retention system that provides that only official email will be retained also improves a company's chances of being able to use email evidence offensively in litigation -- as a business record -- rather than being limited to having email used only against it. Without a system in place ensuring that email records are generated and retained in the ordinary course of business, such communications may be used against a company, but not by it, in litigation.
Email inverts the normal pattern of document retention. Paper records traditionally have been saved or thrown out on a daily basis by employees who make judgment calls about the lasting significance of documents generated or received that day, such as scribbled notes about a meeting, a joke circulated by an office-mate or an advertisement distributed by an employee selling Amway products. A similar filtering process may not normally take place with respect to email unless a company uses a UNIX-based system that requires recipients to affirmatively save an email message in order to avoid its automatic deletion once the message is read. Most email programs used by large corporations provide that email messages remain in an employee's in-box unless affirmatively deleted. These messages typically are either stored on a user's hard drive or on network servers. Whereas with paper documents an employee must make an affirmative decision to file -- and hence retain -- a given piece of paper, most email systems will automatically store all communications which are not affirmatively deleted. Thus, meaningless, trivial and potentially unimportant email piles up on individual hard drives or on network servers (and potentially in storage drives or backup tapes), creating a potential nightmare when, as a result of litigation, someone is forced to sift through all of the historic email.
An important component of a company email policy therefore should be the requirement that -- in addition to regular purges of old email -- historic email records not be retained on back up tapes. While a company's email system may be routinely backed up to protect data in case of a network crash or other malfunction, historical back-up tapes should not be retained. If a business routinely backs up its entire network -- including its email system -- and retains back up tapes in the same way that it retains documents for a period of years, it potentially exposes itself to horrendous burdens in discovery when it is sued. Thus, where practicable, backup tapes should regularly be overwritten so that at any given moment a company only has records of email for the preceding week or two.
The specific policy suggested here may not be practical for all companies2. A business which fails to implement an adequate policy, however, may find itself unnecessarily reviewing millions of email messages. This is especially true where attorney-client communications occur by email, since a company producing email back up tapes could risk waiving the attorney-client privilege if it inadvertently produces privileged email messages interspersed among millions of more routine communications. The risk of this type of inadvertent disclosure is substantial and courts are divided on the issue of whether an inadvertent disclosure waives the privilege. Compare, e.g., Genentech, Inc. v. ITC, 122 F.3d 1409 (Fed. Cir. 1997) (inadvertent disclosure of 12,000 pages of documents was found to have been the result of inadequate procedures and therefore held to have effected a general waiver of the attorney-client privilege and work product doctrine with respect to those documents); with Redland Soccer Club, Inc. v. Department of the Army, 55 F.3d 827, 856 (3d Cir. 1994) (inadvertent production of five documents did not effect a waiver of the deliberative privilege because the disclosure was not voluntary); Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1983); KL Group v. Case, Kay & Lynch, 829 F.2d 909, 919 (9th Cir. 1987) (no waiver when disclosure is inadvertent); and In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989); Texaco Puerto Rico v. Dept. of Consumer Affairs, 60 F.3d 867 (1st Cir. 1995); In re Grand Jury proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984) (even an unintentional or inadvertent disclosure waives the privilege).
The retention time for email legitimately should be much shorter than for other forms of documentary evidence (especially if a company adopts a specific policy requiring that "official" communications be separately retained). The speed with which email is communicated, the nature of such communications (which often address immediate needs, which are meaningless days or even hours later) and the tremendous volume that is generated in many companies all justify a shorter time period within which email must either be saved as "official" or automatically deleted. This form of email deletion should not be treated as equivalent to document destruction. Rather, it merely corrects for the inversion of employee document retention patterns caused by most non-UNIX-based email programs and systemizes what most people naturally do every day with tangible communications.
1. Courts may assess the reasonableness of both the general retention period and categories of documents subject to destruction, as well as considering whether a longer retention period should apply for certain specific categories of documents.
2. For example, U.S. government regulations may compel more stringent retention policies for certain government contractors.
Originally Published in The Essentials of Computer Discover Seminar Course Materials. By Glasser LegalWorks Copyright (c) 1999 Glasser LegalWorks. All Rights Reserved.

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This matter is before the Court on Petitioner Amber Martindale's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 91). The Government has responded and requests the Court dismiss Petitioner's motion (Doc. 95); Petitioner has replied (Doc. 96). For the reasons stated below, Petitioner's motion is dismissed.
Martindale entered guilty pleas to Counts One and Ten of the Indictment charging violations of 21 U.S.C. § 846 and 18 U.S.C. § 924(c), namely conspiracy to possess with the intent to distribute 50 grams or more of methamphetamine, and possession of a firearm in furtherance of a drug trafficking offense. Martindale's criminal history category was II, resulting in a Guideline range of imprisonment of 63-78 months on Count One and 60 months on Count Ten. Martindale was subject to the statutory mandatory minimum of 60 months on both counts.
On February 6, 2012, this Court sentenced Martindale to a term of 63 months on Count One and a term of 60 months on Count Ten, with both terms to run consecutively for a controlling sentence of 123 months. Martindale's sentence on Count One was subsequently reduced from 63 months to 60 months, with a resulting overall sentence of 120 months.
The Court recognizes that the residual clause definition of a “crime of violence” in § 924(c)(3)(B) is similar to the residual clause definition of a “violent felony” in the ACCA.Martindale's sentence enhancement, however, was based on a “drug trafficking crime, ” not a “crime of violence, ” and the definition of crime of violence in § 924(c)(3)(B) was not implicated when Martindale was sentenced. The holding in Johnson did not affect the unambiguous definition of a “drug trafficking crime” in § 924(c)(2),  and consequently, Martindale's § 2255 motion must be dismissed.
Rule 11 of the Rules Governing Section 2255 Proceedings requires the court to “issue or deny a certificate of appealability when it enters a final order adverse” to the petitioner. A court may grant a certificate of appealability (“COA”) only “if the applicant has made a substantial showing of the denial of a constitutional right.” “When the district court denies a habeas petition on procedural grounds without reaching the [petitioner's] underlying constitutional claim, a COA should issue when the [petitioner] shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” For the reasons stated above, the Court finds that Martindale has not satisfied this standard and, therefore, denies a certificate of appealability as to its ruling dismissing her § 2255 motion.
Martindale's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 91) is hereby DISMISSED; Petitioner is also denied a COA.


Language is the fundamental basis of national identity, self-determination, and culture. Linguistic diversity is a major guarantee of the cultural diversity of the world. Therefore, it is hard to overestimate the importance of the preservation and development of national languages. Language is also a tool of communication between people both within a state and internationally. Language constitutes an interdisciplinary domain of which legal issues form an important part, and language is a precondition for formulation and enjoyment of fundamental rights.
New information and communication technologies (ICT), as well as the entirety of progress of technology, can influence the development of language. This can be illustrated by the fact that, in increasing numbers, conversation partners who use the Estonian language are artificial technical systems. Ranging from user interfaces of mobile phones to central information services, these systems also include safety-critical applications such as medical devices and vehicles’ driver information systems. None of these systems at their present level of development really understands or speaks natural languages in the human sense. Instead, they use sophisticated technology to emulate human language behaviour and extract unambiguous information from human input. All of these language technologies are built upon digital language resources.
For the purpose of this article, digital language resources are defined as databases whose content consists of many written and oral texts. Selection of the texts to be included in this database is a creative process that requires collection and systematisation of the material for inclusion in this database. Therefore, the database is protected by copyright as a work *6 under the Estonian Copyright Act. *7 In this article, ‘digital language resources’ refers to the content of the database, a collection of written and spoken texts, and not to technical tools and Web applications.
The challenges related to creation of new language technologies are not limited to technological problems. There is also a myriad of legal issues, ranging from personal data protection to intellectual property problems, first and foremost in the field of copyright.
The aim of this article is to study some issues related to the development of digital language resources, which constitute a crucial challenge for new language technologies. For establishment of digital language resources, there is a need to utilise texts in enormous quantities and great variety. Most of these texts are protected by copyright as literary works. *8 According to copyright rules, the use of works can either be based on right-holders’ consent in the form of a contract or follow the rules of free use of works or, in other words, copyright exceptions to the exclusive rights of the author established by the legislator. The first option is called the licensing model and the second one the exception model. The practice of different countries in relying on the licensing or exception model to develop digital language resources varies, depending on policy and legal considerations and on the size and structure of the local market.
The creation of national digital language resources in Estonia serves public interests. Such a digital language resources database is created not for direct commercial purposes. The aim is to fulfil the Constitutional task of preserving and developing the Estonian language. Therefore, in this article, the authors concentrate on the issues of applicability of exceptions to exclusive rights of the author in the Estonian Copyright Act, which facilitates the creation of digital language resources.
The research related to copyright aspects of digital language resources is in its initial stage in Europe. This is a field of knowledge that requires an interdisciplinary approach and joint effort of linguists, lawyers, and IT specialists. The present article reflects the research results from the Estonian state programme for language technology and the research and innovation policy monitoring programme. The research in this interdisciplinary field is undertaken by scientists from the Institute of the Estonian Language and the Faculty of Law of the University of Tartu.
The topic of this article is directly tied in with several European Union policies. One of the aims of the European Union is to promote multilingualism. The overall goal is ‘to contribute to a truly integrated, borderless digital Single Market by ensuring easy access to online services and creating better conditions for the development and use of rich content in Europe’s many languages. The end result will be a digital economy, a society where knowledge and skills as well as online services, both public and private, can flow freely across national and language borders’. *9 Therefore, the Member States co-operate with the aim of sharing and trading language resources, both content data and digital tools. *10 In this article, the authors concentrate primarily on national issues of creation of digital language resources.
In the following sections, the authors first explain technological and copyright-related aspects of digital language resources. After that, they consider limitations of an author’s exclusive rights—in other words, the free-use provisions of the Estonian Copyright Act, which could serve as a legal basis for development of national digital language resources. These copyright exceptions are analysed in light of the Constitutional guarantee of preservation of the Estonian language and in the conceptual framework of the ‘three-step test’, which is a fundamental concept for limitation of authors’ rights.
Language can be supported by technology on a variety of levels. Accented characters, sorting orders, and date formats are already taken for granted. Language-technology applications that are available for the Estonian language include spelling checkers, machine translation, speech synthesis (converting written text into speech), and speech recognition (converting speech to written text). There is a noticeable difference in quality between these tools and similar tools for major languages. Given the market sizes, it is natural for English to be the first language in which the cutting edge of technology is developed. For instance, conversation agents such as Apple’s Siri and intelligent information retrieval were ‘born’ in English. An example of the latter is the IBM Watson computer system *11 , which in 2011 defeated human champions in an episode of the quiz show Jeopardy *12 , which is based on contestants answering questions posed in natural language.
While it would be theoretically possible to program such systems explicitly with language competence, this task would be prohibitively time-consuming and error-prone in practice. Also, the entire task of coding language rules would have to be repeated for each new language, making the effort non-scalable and especially infeasible for languages with smaller numbers of speakers, which, in turn, makes fewer resources available for language-technology development.
Modern statistical methods employ a different approach by shifting the emphasis from program logic to language data. *13 The program is mainly concerned with implementing a machine learning algorithm, which then enables the system to learn natural languages more or less as a human being would have, only on a more formal level. To this end, the system needs to be provided with numerous authentic examples of how humans use the language in question. The quantity of such language data is correlated with the quality of the resulting language-technology system. The current worldwide trend is to keep increasing the sizes of language resources, from hundreds of millions to billions of words. A billion words corresponds to roughly 15,000 midsize printed books.
It is possible to distinguish between two types of machine learning: assisted and unassisted. In language technology, the difference lies in the kind of texts presented to the system. Unassisted learning uses normal texts as they are found: books, Web sites, chat transcripts, recordings of talk shows, and any others that can be made available to the machine in huge quantities. For straightforward topics such as learning of translational equivalents at sentence or phrase level, on the basis of existing human translations, this works fairly well, as confirmed by the constantly growing usefulness of machine translation systems such as Google Translate. However, even slightly more complex inferences require more sophisticated learning techniques and greater processing power than are currently available for mainstream language-technology applications. For example, the relatively simple knowledge that in English ‘is’ and ‘were’ are both forms of ‘to be’ is very hard to extract from running text, unless human beings give the machine some explicit clue about it first.
Assisted machine learning, which is, in essence, learning by example, is more realistic for most types of linguistic knowledge at our present level of technological development. Human linguists annotate texts with the kind of tags that they want the machine to be able to apply, then feed these tagged texts into the system (this is called training), and the system quickly learns to perform the same job independently.
The texts to be included in language resources need to be from the areas of language use that the resulting system will be used for. If training is limited to texts with no copyright protection—i.e., legislative texts and fiction from previous centuries *14 —the system will not cope with the modern discourse of user manuals or medical-information systems.
Samples of both written and spoken language use are needed for development of language‑technology systems. Spoken-language resources contain audio or multimedia recordings of speech of various types, including spontaneous conversations. Written-language resources include anything from legislative texts to chat-room transcripts. For most types of resources, the important parameters of the source material, in addition to its size, are the topic and register. The meaning or message of the text is not used by language-technology applications at their present stage of development. In the compilation of a language resource, the texts are just piled together into a huge database with specific search capabilities, possibly with added tagging. Although it may be technically possible to retrieve substantial portions of the source texts from language resources, this is not what they are designed and normally used for. They are intended only for extraction of information about how language works, by both human researchers and machine learning algorithms in language-technology applications.
From the copyright perspective, the creation of digital language resources involves the use of written and oral texts that are usually protected by copyright. Subsection 4 (2) of the Copyright Act defines protectable work as ‘any original results in the literary, artistic or scientific domain which are expressed in an objective form and can be perceived and reproduced in this form either directly or by means of technical devices’. *15 Subsection 4 (6) of the Copyright Act provides that ‘[t]he protection of a work by copyright is presumed [...]. The burden of proof lies on the person who contests the protection of a work by copyright’. In practical terms, this means that any text written or spoken by a human being *16 enjoys copyright protection and its use either requires authorisation or shall be based on limitations.
2) It is possible under §5 of the Estonian Copyright Act, which provides that legislation, administrative documents, court decisions, and official translations thereof are not copyright-protected.
It should be mentioned that even after a work leaves copyright, authorship has to be honoured. This requirement is provided by Article 6bis of the Berne Convention and also integrated into the Estonian Copyright Act. It is necessary to distinguish between two distinct legal concepts here: authorship *18 and the right to authorship. *19 The only obligation of the user after the end of the term of copyright protection is to honour authorship by making reference to the author of the text used. Pursuant to §44 (1) of the Copyright Act, ‘[t]he authorship of a certain work, the name of the author and the honour and reputation of the author shall be protected without a term’ *20 . As a matter of fact, the right to authorship is also enshrined in §39 of the Estonian Constitution *21 , which provides that ‘[a]n author has the inalienable right to his or her work. The state shall protect the rights of the author’. Compliance with this requirement in the context of development and management of digital language resources is not complicated or burdensome.
The creation of language resources cannot rely solely on materials outside the scope of copyright protection. In the process of development and preservation of language, it is crucial to use contemporary texts as ‘raw material’. These texts include works and extracts thereof that are still under copyright protection. The utilisation of copyright-protected material, however, can be based either on right-holders’ direct consent or on limitations of right-holders’ exclusive rights. Such limitations are foreseen in Chapter IV of the Estonian Copyright Act, ‘Limitations on Exercise of Economic Rights of Authors (Free Use of Works)’. In this article, we refer to these limitations also as copyright exceptions.
Copyright laws are not drafted in consideration of rapid technological developments. *22 Therefore, it has been established practice throughout the history of copyright law to try to interpret existing provisions in light of new developments, before corresponding changes to the law have been introduced. Now is not the first time when technological progress has been in tension with intellectual property (IP) systems. Often, IP experts have emphasised that technological advances have a destabilising effect on IP systems. *23 From our point of view, it is not so much IP systems that are adversely affected by technological advances. Vice versa, the IP system is not a thing in itself. Its main purpose is to enhance innovation in all spheres of life, including culture and social welfare—and also language. As far as the utilisation of the emerging IT technologies is concerned, the IP system more often constitutes a barrier to them than a mechanism to leverage unforeseen opportunities offered by these technologies.
This, however, does not mean that language resources cannot be developed within the current copyright regulations. It is essential to bear in mind that different exploitation methods determine whether one should utilise the exception or licensing model. In most cases, digital language resources can be developed and utilised in accordance with the existing copyright limitations (i.e., under the exception model). All copyright limitations, including those relevant to development of digital language resources, have to be placed within the context of the three-step test, which is a key in how to conceptualise, interpret, and implement the existing framework of copyright limitations in the Copyright Act.
There are certain differences in the conceptualisation of the three-step test between the Berne Convention and the TRIPS Agreement. According to commentaries on the TRIPS Agreement, ‘while the Berne Convention only refers to the “reproduction” right of literary and artistic works, Article 13 of the TRIPS Agreement applies to all exclusive rights conferred’. *27 As a result, the TRIPS Agreement further limits the freedom of WTO countries to introduce new copyright exceptions to address challenges brought by technological change.
Next, the authors address copyright exceptions applicable in the process of creation of digital language resources. Since it is not enough to analyse specific exceptions if one is to determine their appropriateness, the authors place them within the framework of the three-step test. Therefore, the authors start by outlining conditions of specific exceptions such as the quotation right and the research exception. After this, the paper explores whether utilisation of these exceptions is in conflict with the normal exploitation of the work. Finally, arguments are presented to support the use of the quotation right and research exception to develop language resources. Constitutional guarantees for preservation of the Estonian language serve here as a central justification of development of digital language resources.
The first requirement of the three-step test is that an exception be directly prescribed in the Copyright Act. There are several exceptions under which the use of copyright-protected works is allowed without the consent of the author and without payment of remuneration. Section 19 of the Estonian Copyright Act sets forth several exceptions allowing ‘free use’ for certain scientific, educational, informational, and judicial aims. The exceptions relevant to digital language resources are the right to quote *31 and use of works for scientific purposes. *32 Both exceptions offer opportunities for, and limitations to, development of digital language resources.
In order to exercise the quotation right, one need not seek the author’s authorisation or pay him or her remuneration. However, it is required to indicate the source, use only works that have been lawfully published, convey the idea of the work correctly, and confine quotations to reasonable limits. *33 Fulfilment of the requirements to use lawfully published works, make reference to the source, and convey the author’s ideas correctly is not complicated, even though in the Internet era it is sometimes hard to say whether a work has been lawfully published.
The most complex issue is that the extent of included quotations must not exceed that justified by the purpose. *34 According to legal commentators, no limitation is placed on the amount that may be quoted. The concept of ‘quotation’ usually suggests that the thing quoted is part of a greater whole rather than the whole itself. Still, quotation of the whole work may be justifiable. *35 Within the context of development of digital language resources, the extent of quotation depends on the type of text. If a work is relatively short, it may be included in its entirety in the database of digital language resources. It is very hard to state an approximate percentage. The authors believe that this criterion is evaluated within the second and third requirements of the three-step test.
Since copyright law allows commercialisation of new works that contain quotations from works of other people, digital language resources made up of quotations can be sold or licensed for a fee.
Use for scientific purposes (i.e., under the research exception) is not to involve commercial exploitation of language resources. It also has to be limited to the purpose of illustration or to the extent justified by the purpose at educational and research institutions. According to copyright experts, ‘[b]oth illustration for teaching and scientific research must be the sole purpose of the use for which the exclusive rights may be restricted. Accordingly, when the reproduction or other use also fulfils an additional purpose, the exception or limitation must not apply’. *36 Here again, the validity and relevance of these purposes are evaluated within the second and third requirements of the three‑step test.
The preliminary market analysis of exploitation-models practice by copyright-holders of written and oral texts in Estonia reveals that the value is extracted mostly through selling of the texts as literary works (books, journals, e-books, etc.) or offering of advertising on a Web site or blog that contains copyright-protected texts, or these texts are not commercialised at all. The authors are unaware that any business actor holding copyright to many written texts would commercially exploit them by means of development and utilisation of digital language resources. The WTO report also emphasises that ‘the extent of exercise or non-exercise of exclusive rights by right holders at a given point in time is of great relevance for assessing what is the normal exploitation with respect to a particular exclusive right in a particular market’ *39 . Therefore, the authors assert that creation of digital language resources for scientific purposes is not in conflict with the normal exploitation of the work.
The third requirement of the three-step test is that the act not unreasonably prejudice the legitimate interests of the author. According to copyright experts, ‘[t]he words “not unreasonably prejudice” therefore allow the making of exceptions that may cause prejudice of a significant or substantial kind to the author’s legitimate interests, provided that (i) the exception otherwise satisfies the first and second condition [...], and (ii) it is proportionate or within the limits of reason, i.e., if it is not unreasonable’ *40 . The WTO report further elaborates on this matter: ‘[P]rejudice to the legitimate interests of right holders reaches an unreasonable level if an exception or limitation causes or has the potential to cause an unreasonable loss of income to the copyright owner.’ *41 This criterion requires one to consider whether development of digital resources of the Estonian language takes precedence over right-holders’ economic interests in restriction of the quotation right and the research exception. The question has to do with public interest, which is country-specific. Legal scholars have characterised it as follows: ‘“Public interest’, however, is a shifting concept that requires a careful balancing of competing claims in each case and one that is frequently interpreted in different ways at the national level, depending upon historical, cultural, and social circumstances’ *42 .
In Estonia, our language is protected at the Constitutional level. This means that the Constitutional guarantee of preservation of the Estonian language is a key in construction and implementation of the Estonian Copyright Act and a basis and justification for development of digital language resources.
Right-holders of literary works do not usually commercially exploit their works to create digital language resources in Estonia.
Development of digital language resources is not in conflict with normal exploitation of the works.
An important consideration in determination of whether the creation of digital language resources unreasonably prejudices the right-holders’ legitimate interests is the need to preserve the Estonian language.
Language is a condito sine qua non for every culture; i.e., without language there is no culture. Language is not a static phenomenon. In contrast, its character is rather dynamic and it is continuously evolving in response to trends in society, culture, and technology. Advances in information and communication technologies enable the enhancement of language technologies. These technologies, however, are based on digital language resources, whose creation requires the utilisation of numerous copyright-protected texts. Therefore, copyright is an important issue in the development of digital language resources.
The official language of Estonia is Estonian, and the Constitution and other legal acts set in place measures to enforce this Constitutional provision. Therefore, the creation of digital language resources databases fulfils certain important aims of public law. At the same time, the exclusive economic and personal rights of an author or other right-holder are protected at the Constitutional level and more specifically by private law, in the Copyright Act. It is not easy to find the right balance between public- and private-law measures and among the divergent interests of the various stakeholders.
There are two main methods for creation of digital language resources databases: on the basis of a contract with copyright-holders (licensing model) and reliance on the provisions for fair-use exceptions (limitations to exclusive rights of the authors) in the Copyright Act (exception model).
In this article, the authors have explored whether copyright exceptions allow the development of digital language resources without acquisition of authorisation from right-holders and payment of remuneration. These exceptions were placed within the conceptual framework of the three-step test and interpreted in light of the Constitutional guarantee to preserve the Estonian language.
The authors’ main conclusion is that the Estonian Copyright Act as constructed and implemented in light of the Estonian Constitution allows creation of digital language resources by exercise of the quotation right and the research exception. This conclusion is supported by the fact that the development of language resources is not in conflict with the normal exploitation of works. That is, right-holders for these texts are not commercially exploiting their works to create language resources. These activities are conducted mostly by public research institutions. The reason is that, because of the small number of individuals speaking the Estonian language, it is not economically sustainable for profit-oriented entities to invest in the development of digital language resources. Therefore, research institutions developing and utilising digital language resources are not depriving the right-holders whose texts are included in the resources of any revenue and there are no adverse financial consequences for right-holders.
It is also crucial to consider the Constitutional guarantees made for the Estonian language. The three-step test that constitutes the main standard for determination of whether a right-holder’s interests and rights are violated allows limiting of these rights in cases wherein there is compelling reason for so doing. The authors conclude that the need to develop and preserve the Estonian language qualifies as compelling reason.
*1 This publication has been supported by the European Social Foundation through the Research and Innovation Policy Monitoring Programme.
*2 Eesti Vabariigi põhiseadus (as entering into force on 3.7.1992). – RT 1992, 26, 349; RT I, 27.4.2011, 1 (in Estonian). English translation available via http://www.legaltext.ee/ (most recently accessed on 11.3.2012).
*3 R. Narits, H. Schneider. Preambul (Preamble). – Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne. Teine, täiendatud väljaanne (Constitution of the Republic of Estonia, Commented Edition, Second Edition), edited by a panel led by E.-J. Truuväli. Tallinn: Juura, Õigusteabe AS 2008, p. 35 (in Estonian).
*4 This Constitutional provision is implemented by the Language Act, which is intended to ‘develop, preserve and protect the Estonian language and ensure the use of the Estonian language as the main language for communication in all spheres of public life’ (§1). See Keeleseadus (as entering into force on 1.7.2011). – RT I, 18.3.2011, 1 (in Estonian). English translation available via http://www.legaltext.ee/ (most recently accessed on 13.3.2012).
*5 K. Merusk et al. §6. – Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne (see Note 4), p. 72 (in Estonian).
*6 Another option is to protect databases through sui generis rights provided by Directive 96/9/EC of the European Parliament and of the Council of 11.3.1996 on the legal protection of databases and Chapter VIII1 of the Estonian Copyright Act.
*7 Autoriõiguse seadus (as entering into force on 12.12.1992). – RT 1992, 49, 615; RT I, 28.12.2011, 1 (in Estonian). Unofficial translation available via http://www.legaltext.ee/ (most recently accessed on 11.3.2012).
*8 To some extent, problems related to management of digital language resources are not entirely unique. For instance, mass digitalisation projects (e.g., by libraries) often face the same obstacles.
*9 An inventory of Community actions in the field of multilingualism – 2011 update. Commission Staff Working Paper. Brussels, 7.7.2011, SEC(2011) 926 final, p. 26.
*10 For instance, Estonia is one of the founding members of the Common Language Resources and Technology Infrastructure (CLARIN).
*11 D. Ferrucci, E. Brown, J. Chu-Carroll, J. Fan, D. Gondek, A.A. Kalyanpur, A. Lally, J.W. Murdock, E. Nyberg, J. Prager, N. Schlaefer, C. Welty. Building Watson: An overview of the DeepQA Project. – AI Magazine 2010/Fall. Available at http://www.aaai.org/Magazine/Watson/watson.php (most recently accessed on 5.4.2012).
/POW03061USEN.PDF (most recently accessed on 5.4.2012).
*13 D. Jurafsky, J.H. Martin. Speech and Language Processing. Prentice Hall 2009.
*14 These two account for a large part of the material in current Estonian language resources; see http://www.cl.ut.ee/korpused/ (most recently accessed on 5.4.2012).
*15 The definition is based on Article 2 (1) of the Berne Convention for the Protection of Literary and Artistic Works. Berne, 9.9.1886 (which entered into force with respect to Estonia on 26.10.1994). – RT II 1994, 16–17, 49 (the Berne Convention).
*16 One of the underlying concepts of Estonian copyright law reads: ‘The author of a work is the natural person or persons who created the work’ (§28 (2) of Copyright Act). In view of this concept, it is hard to say whether a work generated by a computer program is protectable or not. One approach would be to vest copyright in the person who created the program.
*17 The copyright terms are unified within the EU, and, therefore, all EU countries have a similar situation. See Council Directive 93/98/EEC of 29.10.1993 harmonizing the term of protection of copyright and certain related rights. – OJ L 290, 24.11.1993, pp. 9–13.
*18 Authorship is a connection between the work and its creator, and it is protected forever. See §44 of Copyright Act.
*19 The right of authorship involves a general term of protection, as a rule, of the life of the author plus 70 years. See §12 (1) 1) of Copyright Act.
*20 According to §12 (1) 1) of Copyright Act, the right to authorship means to ‘appear in public as the creator of the work and claim recognition of the fact of creation of the work by way of relating the authorship of the work to the author’s person and name upon any use of the work’.
*21 The Estonian Constitution has several provisions that address intellectual property protection. Section 39 protects creators’ (authors and inventors’) personal rights, and §32 covers, in addition to tangible property, economic rights and interests of IP-owners.
*22 On the EU level, there is Directive 2001/29/EC of the European Parliament and of the Council of 22.5.2001 on the harmonisation of certain aspects of copyright and related rights in the information society. – OJ L 167, 22.6.2001, pp. 10–19 (the InfoSoc Directive). This directive, however, does not introduce a new copyright paradigm. It instead specifies and complements the existing copyright regulations.
*23 See W. Cornish, D. Llewelyn. Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, Sixth Edition. London, Sweet & Maxwell 2007, p. 34.
*24 Article 9 (2) of the Berne Convention.
*25 Agreement on Trade-related Aspects of Intellectual Property Rights. Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization. Marrakech, 15.4.1994. This entered into force with respect to Estonia on 13.12.1999 (cited in RT II 1999, 22, 123).
/Okideiji_Bellagio4.pdf (most recently accessed on 17.3.2012).
*27 C.M. Correa. Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement. Oxford: Oxford University Press 2007, p. 136.
*28 Article 5 of the InfoSoc Directive also includes the three-step-test regulation.
*30 See S. Ricketson, J.C. Ginsburg. International Copyright and Neighbouring Rights: The Berne Convention and Beyond, Second Edition, Volume I. Oxford University Press 2006, p. 763.
*31 On the international level, the right to quote is regulated by the Berne Convention, which provides that ‘[i]t shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose’ (Article 10 (1)).
*33 Clause 19 1) of Copyright Act.
*34 Clause 19 1) of Copyright Act.
*35 Ricketson, Ginsburg (see Note 31), p. 788.
*36 M.M. Walter, S. von Lewinski. European Copyright Law: A Commentary. Oxford University Press 2010, p. 1044.
*37 Ricketson, Ginsburg (see Note 31), p. 769.
*38 WTO. Report of the Panel. WT/DS160/R (15.6.2000), p. 48. Available at http://www.wto.org/english/news_e/news00_e/1234da.pdf (most recently accessed on 17.3.2012).
*40 Ricketson, Ginsburg (see Note 31), p. 776.
*41 WTO (see Note 39), p. 59.
*42 Ricketson, Ginsburg (see Note 31), p. 756.


text:
In 2010, the widow of a Taiwanese plastics magnate and billionaire filed suit against the trusts created before her husband's death, alleging that the transfer of a large portion of her husband's assets to the trusts unlawfully denied her the full marital estate to which she was entitled. The district court ultimately granted, subject to conditions, the trusts' motion to dismiss the complaint on forum non conveniens grounds.
The DC Circuit reversed and remanded, holding that the district court failed to give appropriate weight to the widow's legitimate choice of forum and erred in concluding that the private interest factors weighed slightly in favor of dismissal and in overemphasizing the public interest factors in deciding to dismiss this case on forum non conveniens grounds. In this case, the trusts failed to meet its heavy burden of showing that suit in the United States was so inconvenient as to be harassing, vexing, or oppressive. The court held that, the district court's errors, considered together, constituted a clear abuse of discretion.
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 11, 2018 Decided March 15, 2019 No. 18-7066 ROBERT SHI, AS EXECUTORS OF THE WILL OF YUEH-LAN WANG, ET AL., APPELLANTS v. NEW MIGHTY U.S. TRUST, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-01743) Daniel S. Weinberger argued the cause and filed the briefs for appellants. John L. Gardiner argued the cause for appellees. With him on the brief were Andrew Muscato and David B. Leland. Before: ROGERS, GRIFFITH and PILLARD, Circuit Judges. Opinion for the court filed by Circuit Judge ROGERS. ROGERS, Circuit Judge: This is the second time this case has come before the court. The first time the court held that the 2 district court had jurisdiction and reversed the dismissal of the complaint for lack of diversity. Wang ex rel. Wong v. New Mighty U.S. Trust, 843 F.3d 487 (D.C. Cir. 2016). The underlying factual circumstances are summarized there. See id. at 488–89. Suffice it to say, in 2010, Yueh-Lan Wang, the widow of Taiwanese plastics magnate and billionaire YungChing (“Y.C.”) Wang, sued three D.C.-based entities (hereinafter “the Trusts”) created before her husband’s death, alleging that the transfer of a large portion of her husband’s assets to the Trusts unlawfully denied her the full marital estate to which she was entitled. Suing initially through Dr. Wong to whom she had granted her power of attorney and upon her death in 2012 through the executors of her estate, the widow raised claims under District of Columbia and Taiwanese law. After seven years of litigation on whether diversity jurisdiction exists, as well as litigation in Taiwan to appoint executors for her estate, the Trusts moved to dismiss the complaint on forum non conveniens grounds. The district court granted the motion, subject to conditions that the Trusts consent to process and jurisdiction in Taiwan and also waive statute of limitations defenses, their necessary or indispensable parties argument, and challenges to the power of attorney used to file suit. Hsu v. New Mighty U.S. Trust, 288 F. Supp. 3d 272 (D.D.C. 2018); Hsu v. New Mighty U.S. Trust, 308 F. Supp. 3d 178 (D.D.C. 2018). The Executors of the widow’s estate appeal. They do not contest that Taiwan is an adequate alternative forum to the extent its judicial system could, with the Trusts’ consent, assert jurisdiction over them and afford some type of remedy for the widow’s claims, see Hsu, 288 F. Supp. 3d at 282–86. Instead, the Executors contend the district court’s balancing misapplied the private and public factors and consequently failed to hold the Trusts to their heavy burden when it dismissed the 3 complaint. For the following reasons, we conclude we must reverse and remand the case to the district court. I. The Supreme Court has instructed both that a court may decline to exercise jurisdiction pursuant to the doctrine of forum non conveniens only “in exceptional circumstances,” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947), and that “[a] defendant invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum,” Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430 (2007). In determining whether to dismiss a case on forum non conveniens grounds, the district court “must decide (1) whether an adequate alternative forum for the dispute is available and, if so, (2) whether a balancing of private and public interest factors strongly favors dismissal.” Agudas Chasidei Chabad of U.S. v. Russian Federation, 528 F.3d 934, 950 (D.C. Cir. 2008). The court must balance the relevant private and public interest factors in light of the degree of deference the plaintiff’s choice of forum deserves. El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 676–77 (D.C. Cir. 1996), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305 (2010). “[U]nless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Gilbert, 330 U.S. at 508. This court’s review of the dismissal of a complaint on forum non conveniens grounds is for “clear abuse of discretion” because that “determination is committed to the sound discretion of the trial court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). Such abuse occurs where the trial court “fails to consider a material factor or clearly errs in evaluating the factors before it, or does not hold the defendants to their burden of persuasion.” Simon v. Republic of Hungary, 911 4 F.3d 1172, 1182 (D.C. Cir. 2018) (quoting El-Fadl, 75 F.3d at 677). This court accepts as true all factual allegations in the complaint and draws all reasonable inferences in favor of the nonmoving party. Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1156 (D.C. Cir. 2005). A. The Executors contend as a threshold matter that the district court erred in granting the Trusts’ motion to dismiss on forum non conveniens grounds because this ground was not raised until seven years after the litigation began. The Executors point to decisions in a number of circuits that have concluded the defendant must file a motion to dismiss for forum non conveniens “within a reasonable time after the facts or circumstances which serve as the basis for the motion have developed and become known or reasonably knowable to the defendant.” In re Air Crash Disaster Near New Orleans, La. on July 9, 1982, 821 F.2d 1147, 1165 (5th Cir. 1987), vacated on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, 490 U.S. 1032 (1989); accord Rustal Trading US, Inc. v. Makki, 17 F. App’x 331, 338 (6th Cir. 2001); see also SerVaas Inc. v. Republic of Iraq, 540 F. App’x 38, 41–42 (2d Cir. 2013); Zelinski v. Columbia 300, Inc., 335 F.3d 633, 643 (7th Cir. 2003); Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 614 (3d Cir. 1991); Cable News Network L.P. v. CNNews.com, 177 F. Supp. 2d 506, 528 (E.D. Va. 2001), aff’d in part and vacated in part on other grounds, 56 F. App’x 599 (4th Cir. 2003). These courts have recognized that the longer litigation continues in a U.S. court and the parties incur expenses before the defendant moves to dismiss on forum non conveniens grounds, the less the defendant can legitimately claim that litigation in a U.S. forum is so inconvenient as to be oppressive or harassing. See, e.g., Air Crash, 821 F.2d at 1165. In other words, as regards the costs to the parties and the courts that must be considered when balancing the private and public 5 interests, “a defendant’s dilatoriness promotes and allows the very incurrence of costs and inconvenience the doctrine is meant to relieve,” id., which weighs against dismissal. See id. at 1165 & n.30; Zelinski, 335 F.3d at 643. Here, the facts and circumstances that underlie the forum non conveniens ground remained virtually unchanged since the complaint was filed in 2010, yet the Trusts did not move to dismiss the complaint on this ground until 2017, after this court reversed the dismissal for lack of diversity and remanded the case. In a memorandum of law filed in 2012, the Trusts stated in a footnote they “reserve[d] their right” to move to dismiss the complaint on forum non conveniens grounds, indicating they recognized certain facts and circumstances existed at the time that could justify such a motion. Some of the delay is attributable to litigation on the appointment of executors for the widow’s estate in Taiwan, and some is attributable to this court holding her appeal in abeyance pending the Supreme Court’s decision in Americold Realty Trust v. ConAgra Foods, Inc., 136 S. Ct. 1012 (2016). Still, the same law firm and lawyer representing the Trusts in the D.C. litigation also represented defendants (one of whom manages the Trusts based in D.C.) in a similar suit filed by the widow on the same day in the federal court in New Jersey, see Shu v. Wang, No. 10-5302, 2016 WL 6080199, at *4–5 (D.N.J. Oct. 17, 2016), and filed a forum non conveniens motion in 2011, just 9 months after the complaint was filed, id. at *5. Meanwhile, instead of moving to dismiss for forum non conveniens, the D.C.-based Trusts incurred substantial expenses pursuing other litigation strategies, including a motion to dismiss for lack of diversity jurisdiction, a petition for a writ of certiorari to the Supreme Court, and oppositions to the Executors’ motions to substitute for the widow in this court and the district court. All the while, the Trusts also challenged the validity of the widow’s power of attorney under Taiwan law and sought dismissal for failure to 6 state a claim on the same Taiwanese law issues that they now claim are too foreign and difficult for a U.S. court to handle. The Trusts proceeded, moreover, to obtain declarations from Taiwanese law professors interpreting Taiwanese law issues. Although this litigation is still in its early stages despite its advanced age, it is not at the beginning of litigation efforts by any standard, and the parties and the judiciary have incurred substantial costs. Even if the Trusts did not waive their forum non conveniens argument by not raising it earlier, an issue we need not decide for the reasons we explain, their willingness to undergo litigation for seven years in the U.S. federal courts before raising it weighs against dismissal of the widow’s complaint. B. The Executors are on firm ground in contending that the district court erred by failing to give appropriate weight to the widow’s choice to sue in the District of Columbia rather than in Taiwan. Although a U.S. plaintiff’s choice of forum is ordinarily entitled to significant deference because the court may “assume that this choice is convenient,” that assumption “applies with less force” to foreign plaintiffs. Piper, 454 U.S. at 255–56; see also Sinochem, 549 U.S. at 430. But the conclusion that “a foreign plaintiff’s choice deserves less deference,” Piper, 454 U.S. at 256, is a matter of degree. Deference may be appropriate, see, e.g., Lony, 935 F.2d at 609; Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1227 (9th Cir. 2011), and certain considerations may make litigation in a U.S. court the most convenient choice even for foreign plaintiffs, Hefferan v. Ethicon Endo-Surgery Inc., 828 F.3d 488, 494 (6th Cir. 2016); Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 154–55 (2d Cir. 2005); Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d 628, 634 (3d Cir. 1989); cf. Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 7 2001). Even if the plaintiff resides outside of the forum, these courts have understood the Supreme Court’s reasoning to “instruct that [they] give greater deference to a plaintiff’s forum choice to the extent that it was motivated by legitimate reasons, including the plaintiff’s convenience and the ability . . . to obtain jurisdiction over the defendant, and diminishing deference to a plaintiff’s forum choice to the extent that it was motivated by tactical advantage.” Iragorri, 274 F.3d at 73; see also Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 71 (2d Cir. 2003). To the extent the Executors contend for the first time, however, that they were entitled the same deference due U.S. plaintiffs under the Treaty of Friendship, Commerce and Navigation between the United States and Taiwan, this argument is forfeited. United States v. Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996). The widow had no choice but to sue the D.C.-based entities here because they did not appear to be subject to jurisdiction anywhere other than in the United States. See Associação Brasileira de Medicina de Grupo v. Stryker Corp., 891 F.3d 615, 619 (6th Cir. 2018); Tech. Dev. Co. v. Onischenko, 174 F. App’x 117, 122 (3d Cir. 2006); Norex, 416 F.3d at 155–56. The doctrine of forum non conveniens is premised on the assumption that there are “at least two forums in which the defendant is amenable to process,” and “furnishes criteria for choice between them.” Gilbert, 330 U.S. at 506– 07. The district court recognized that the Trusts “effectively concede that they are not amenable to process in Taiwan,” Wang ex rel. Wong v. New Mighty U.S. Trust, 322 F.R.D. 11, 25 (D.D.C. 2017), and a Taiwanese forum became available only when the Trusts acceded to it as a condition of dismissal here. Although a district court may dismiss a complaint on forum non conveniens grounds even where the plaintiff had no alternative forum available until the defendants later consented to appear in their preferred forum, Schertenleib v. Traum, 589 8 F.2d 1156, 1164 (2d Cir. 1978), the lack of an original alternative forum constitutes a “legitimate reason” for a foreign plaintiff’s choice of a U.S. forum. Stryker, 891 F.3d at 619; Norex, 416 F.3d at 155–56. Furthermore, the Trusts were sued in their home jurisdiction, which weighs heavily against dismissal. Schertenleib, 589 F.2d at 1164; see also Galustian v. Peter, 591 F.3d 724, 732 (4th Cir. 2010); Reid-Walen v. Hansen, 933 F.2d 1390, 1395 (8th Cir. 1991). The district court clearly failed to adequately address these circumstances in determining the amount of deference to accord the widow’s choice of forum. C. The Executors further persuasively contend the district court clearly erred in finding that the private interest factors even “slightly” favor dismissal. The considerations governing the private interest analysis include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive[, such as] enforc[ea]bility of a judgment if one is obtained [and] relative advantages and obstacles to fair trial.” Gilbert, 330 U.S. at 508. A plaintiff “may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.” Id. Dismissal in favor of suit elsewhere “will ordinarily be appropriate where trial in the plaintiff’s chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice,” such as where a plaintiff chooses a particular forum “solely in order to harass the defendant or take advantage of favorable law.” Piper, 454 U.S. at 249 & n.15. 9 The district court concluded that the language barrier was a “substantial obstacle” to access to relevant evidence in the District of Columbia. Hsu, 288 F. Supp. 3d at 288. To the extent translation is considered a significant obstacle in this day and age, that obstacle will exist regardless of where this case is tried. See Simon, 911 F.3d at 1186; de Csepel v. Republic of Hungary, 714 F.3d 591, 605 (D.C. Cir. 2013). The district court focused on the need to interpret a Tax Settlement Agreement cited in the Trusts’ motions to dismiss for failure to state a claim, regarding whether the other two women who bore Y.C. children were also his wives. See Hsu, 288 F. Supp. 3d at 288. But in evaluating the convenience to each party, “the court should focus on the precise issues that are likely to be actually tried, taking into consideration the convenience of the parties and the availability of witnesses and the evidence needed for the trial of these issues.” Iragorri, 274 F.3d at 74. The widow’s claims focus on whether Y.C. owned the assets that were transferred to the Trusts and whether Y.C. formed the Trusts to reduce the widow’s share of the Marital Estate. The documents related to these claims are likely to be in English because the relevant transactions were between entities formed in English-speaking countries, and the witnesses who could provide information about these transactions, such as the lawyers and tax advisors who created the Trusts and officers of the U.S. subsidiaries whose stock holdings were transferred, speak English. Whether another “wife” has claims to any assets that may be added to the Marital Estate as a result of the widow’s lawsuit may be an issue in this litigation down the line, but the widow’s claims do not center chiefly on Taiwanese-language documents. By placing “undue emphasis” on an issue that is “of secondary importance,” the district court distorted the forum non conveniens analysis. R. Maganlal & Co. v. M.G. Chemical Co., 942 F.2d 164, 165, 168 (2d Cir. 1991). 10 The district court also concluded that the issue of the availability of witnesses and evidence “hangs in equipoise.” Hsu, 288 F. Supp. 3d at 290. Logistical hurdles to obtaining evidence and voluntary testimony in the United States present less of a problem than they used to in light of technological advances and the ease of international travel. See Simon, 911 F.3d at 1186; Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. 390, 409 (2017). The record indicates the widow may face more difficulty compelling witness testimony in Taiwan than the Trusts will in the United States. The Trusts do not suggest they will be unlikely to persuade their proposed witnesses located abroad — the “Trust Managers” and other of Y.C.’s companies’ employees — to appear voluntarily in a U.S. court, weighing against dismissal. See Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 342–43 (8th Cir. 1983). In contrast, some of the widow’s proposed witnesses are less likely to testify voluntarily. U.S. witnesses are subject to subpoena by U.S. courts, and those courts can reach foreign non-party witnesses through the Hague Evidence Convention 1 and letters rogatory. See Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 540–41 (1987); Fed. R. Civ. P. 28(b). Taiwanese courts do not appear to have such reliable mechanisms of compulsory process. See generally Manu Int’l, S.A. v. Avon Prods., Inc., 641 F.2d 62, 67 (2d Cir. 1981); Expert Decl. of Prof. Tsung-Fu Chen, ¶ 75 (Nov. 16, 2017); Reply Expert Decl. of Prof. Tsung-Fu Chen, ¶¶ 150–52 (May 31, 2017). See Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, List of Contracting Parties, https://www.hcch.net/en/instruments/conventions/status-table/ ?cid=82 (last visited Feb. 19, 2019). 1 11 The district court failed to address the enforceability of judgments in its private interest analysis at all, despite acknowledging that it must balance this issue. Hsu, 288 F. Supp. 3d at 285–86. The enforcement of judgments presents a hurdle to trial in Taiwan given that the funds at issue are not located in Taiwan. If the widow obtains a judgment against the Trusts in Taiwan, then another lawsuit would have to be filed in the United States to enforce the Taiwanese judgment. See Nemariam v. Federal Democratic Republic of Ethiopia, 315 F.3d 390, 395 (D.C. Cir. 2003). Despite the Supreme Court’s instruction that the defendant must make a strong showing that a foreign forum is more convenient, Piper, 454 U.S. at 249, the district court recognized significant hurdles to access to evidence and availability of witnesses in Taiwan but concluded that in the aggregate this factor “weighs slightly in favor of dismissal.” Hsu, 288 F. Supp. 3d at 289. This conclusion does not follow from the district court’s analysis that the parties will confront serious hurdles in either forum. The district court clearly failed to hold the Trusts to their “heavy burden” to show that a foreign forum is significantly more convenient than a U.S. forum, Sinochem, 549 U.S. at 430, that is their home jurisdiction. D. The Executors’ challenges to the district court’s weighing of the public interest factors, see Hsu, 288 F. Supp. 3d at 293, are also persuasive. The considerations governing the public interest analysis include the “[a]dministrative difficulties” when “litigation is piled up in congested centers,” the “burden” of jury duty on “a community which has no relation to the litigation,” the “local interest in having localized controversies decided at home,” and the “appropriateness” of trying a diversity case “in a forum that is at home with the state law that must govern the case, rather than having a court in some other 12 forum untangle problems in conflict of laws, and in law foreign to itself.” Gilbert, 330 U.S. at 508–09. The district court viewed the District of Columbia’s interest in the widow’s claims as “weak,” concluding the “strong Taiwanese interests” “tip sharply in favor of dismissal.” Hsu, 288 F. Supp. 3d at 291. The District of Columbia’s interest in this litigation is not weak, though. Y.C. Wang and his associates are alleged to have reached into the District of Columbia to establish the Trusts, transferring assets to the Trusts and thereby availing themselves of the benefits of District of Columbia law on trusts. As in DiRienzo v. Philip Services Corp., 294 F.3d 21, 32 (2d Cir. 2002), the widow’s lawsuit exists only because Y.C. Wang and his associates utilized U.S. legal structures to devise their alleged tax and estate avoidance scheme, Second Am. Compl. ¶¶ 46–58. See Expert Decl. of Prof. Tsung-Fu Chen, ¶ 76 (Nov. 16, 2017). The Trusts can hardly complain now that they are burdened by being sued in their home jurisdiction when Y.C. Wang specifically bestowed upon the District of Columbia an interest in this case by establishing the Trusts here. A “defendant’s home forum always has a strong interest in providing a forum for redress of injuries caused by its citizens.” Reid-Walen, 933 F.2d at 1400. Although Taiwan and its citizens may have an interest in the division of the estate of one of their wealthiest citizens, Y.C. allegedly transferred significant assets into the United States in order to hide them and avoid legal responsibilities, Second Am. Compl. ¶¶ 37–45. In this circumstance, Taiwan’s interest does not clearly outweigh the District of Columbia’s interest in this dispute. See DiRienzo, 294 F.3d at 31–32. The district court concluded that a jury composed of residents of the District of Columbia should not be burdened with this case. Hsu, 288 F. Supp. 3d at 293. There are 13 obviously significant contacts with the District of Columbia given the Trusts’ operations here. “Any economic burden to the forum is justified because the defendant has undertaken both the benefits and burdens of citizenship and of the forum’s laws.” Reid-Walen, 933 F.2d at 1400. This impact on a jury of D.C. residents would not justify dismissing a case against D.C.-based entities on forum non conveniens grounds. See id. The district court further concluded this litigation would require it to apply Taiwanese family and inheritance law, which “weighs strongly in favor of dismissal.” Hsu, 288 F. Supp. 3d at 292. But the need to apply foreign law alone is “not sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiff’s chosen forum is appropriate.” Piper, 454 U.S. at 260 n.29. The widow alleges claims under District of Columbia and Taiwanese law, and U.S. courts regularly apply foreign law when conflict of laws principles demand it. See Manu Int’l, 641 F.2d at 67–68; Mobil Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611, 615 (3d Cir. 1966). The ultimate importance of interpreting Taiwanese law regarding division of the Marital Estate among multiple putative “wives” is unclear because the widow’s lawsuit centers on the size of the estate to be divided, not how it is to be divided. As discussed, the district court therefore placed undue emphasis on whether Pao Chu Lee was legally a wife of Y.C. Wang, a question that is at most only of secondary importance to the widow’s case. The district court clearly erred in overemphasizing the public interest factors, particularly the need to answer difficult questions of Taiwanese law that may have no or minimal bearing on the widow’s suit. And in view of Y.C. Wang’s decision to establish the Trusts in the District of Columbia and take advantage of both the benefits and burdens under District of Columbia law, even a complex trial in the widow’s chosen 14 forum and the Trusts’ home jurisdiction does not impose unjustified burdens or administrative difficulties on the district court. Accordingly, we must reverse and remand the case to the district court for further proceedings. The district court’s errors, considered together, constitute a clear abuse of discretion. The district court failed to give appropriate weight to the widow’s legitimate choice of forum and erred in concluding that the private interest factors weighed slightly in favor of dismissal and in overemphasizing the public interest factors in deciding to dismiss this case on forum non conveniens grounds. The doctrine of forum non conveniens is to be applied only in rare cases, and only where the defendant meets a heavy burden of showing that suit in the United States is so inconvenient as to be harassing, vexing, or oppressive. No such showing has been made here.
The district court abused its discretion by granting the trusts' motion to dismiss the complaint on forum non conveniens grounds.

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