PDF Killed the Copier Star: Modernizing the Access to Sources of Proof Factor in a 28 U.S.C. § 1404(a) Transfer Analysis

Abstract

With digital solutions to document storage, non-physical sources of evidence will become increasingly relevant for different types of legal actions. For patent proceedings, where evidence is often electronic, the need for a clearly defined approach to analyzing physical and electronic evidence has appeared within the first private factor of a 28 U.S.C. § 1404(a) transfer analysis. The evidentiary factor evaluating non-witness evidence—the access to sources of proof factor or first private factor—was interpreted by the Fifth Circuit when faced with weighing electronic evidence in favor, or against, potential transfer venues. Fifth Circuit precedent—relied upon in other circuit court opinions and the standard for when writs of mandamus reach the Federal Circuit—determined the access to proof factor is still relevant to modern transfer analyzes despite the ease of transfer some digital media provide. The convenience of digital evidence has led some district courts to request an amended approach for the first private factor analysis. In order to maintain the relevance of the access to sources of proof factor, the treatment of electronic evidence needs to be updated to reflect the expanding digital landscape. With a tailored approach recognizing the distinctions and ease of transfer for certain types of evidence, the tension between district court holdings, that the Gilbert factor is superfluous, and the circuit courts, holding that the factor is still relevant for transfer analysis, can be resolved. Sources of proof and the mediums they appear on will constantly change, and the law governing discretionary transfers should be prepared to adapt to those changes. This Comment seeks to provide a recommendation on how that can be achieved.