FREDERIC BLOCK, District Judge
Before the Court is a motion by EgyptAir to dismiss all actions arising from the deaths of domiciliaries of Egypt and Canada who were passengers on the ill-fated EgyptAir Flight 990, which crashed on October 31, 1999, on the ground of forum non conveniens. In addition, the Court is called upon to determine what, if any, sanction should be issued by the Court by reason of the refusal of EgyptAir's proffered expert on Egyptian law, Dr. Moustada Sayed Abd-Elrahman ("Dr. Abd-Elrahman"), to obey a discovery order of Magistrate Judge Chrein. This issue is raised by both Boeing's Fed.R.Civ.P. 72 objections to the Magistrate Judge's refusal to sanction EgyptAir for violation of the discovery order, in which Parker Hannifin has joined, and plaintiffs' motion for sanctions pursuant to Fed.R.Civ.P. 37, in which Boeing has joined. EgyptAir's forum non conveniens motion is denied; the Rule 72 objections and Rule 37 motion are disposed of as hereinafter explained.
The forum non conveniens motion also covered actions brought by Egyptian crew members and Syrian passengers, but those cases have since settled. See Oral Argument Transcript, July 20, 2004, at 11-12.
DR. ABD-ELRAHMAN'S REFUSAL TO OBEY MAGISTRATE JUDGE CHREIN'S ORDER I.
The following facts are uncontested. EgyptAir filed its forum non conveniens motion on September 26, 2001. Prior to responding to the motion, Boeing sought to depose Dr. Abd-Elrahman. His deposition was scheduled for December of 2001, but was canceled by EgyptAir for reasons that are unclear. Boeing moved to compel before the Magistrate Judge, and the deposition was re-noticed for March of 2002; however it did not occur because EgyptAir had not timely furnished copies of Dr. Abd-Elrahman's files for translation. Dr. Abd-Elrahman was eventually deposed on May 1-2, 2002.
At his deposition, Dr. Abd-Elrahman detailed his professional history, stating, inter alia, that he had registered with the Egyptian bar in 1973, that he had been a practicing lawyer for the past 29 years, and that he had voluntarily relinquished his Egyptian bar membership from 1994 to 1999 to avoid paying dues while working out of the country.
Subsequent to that deposition, Boeing served ten requests for production as a consequence of Dr. Abd-Elrahman's deposition testimony. EgyptAir did not respond. Boeing moved to compel before Magistrate Judge Chrein. EgyptAir submitted a written response, producing four documents together with numerous objections.
One of the documents was a certificate from the Egyptian Bar Association, which stated that Dr. Abd-Elrahman registered with the general roster of that bar on May 8, 1991, but that the registration was subsequently "cancelled and declared null and void" on October 19, 1994; the certificate further stated that Dr. Abd-Elrahman was re-registered on September 8, 1999. See Certificate of Arab Republic of Egypt Bar Association, included in Exhibit C to Appendix to Objections of Boeing to Magistrate Judge Chrein's January 21, 2003 Order Declining to Sanction EgyptAir ("Boeing's Appendix"). The certificate offers no explanation for the cancellation. Additionally, a certificate from Monofia University describing Dr. Abd-Elrahman's professional experience stated that he had worked as an investigative officer with the Cairo Security Department from 1973-1987. See Monofia University Status Certificate, included in Exhibit C to Boeing's Appendix. Because these certificates seemed to contradict Dr. Abd-Elrahman's sworn testimony regarding his professional background, Boeing moved before Magistrate Judge Chrein to compel the disclosure of Dr. Abd-Elrahman's full Egyptian Bar Association records. On December 4, 2002, the Magistrate Judge granted the motion, and ordered EgyptAir to comply by January 10, 2003, or to otherwise explain its failure to do so.
On January 10, 2003, EgyptAir wrote to the Magistrate Judge that Dr. Abd-Elrahman would not make his Egyptian bar records available to EgyptAir because he considered their disclosure to be an invasion of his privacy. In response, the Magistrate Judge held a hearing on January 21, 2003. Boeing sought to strike Dr. Abd-Elrahman's affidavit and deposition testimony as a sanction for his refusal to obey the discovery order. Counsel for EgyptAir stated "we can't provide the discovery responses that you ordered because Dr. [Abd-Elrahman], despite our repeated requests, simply will not give us the information." Hearing Transcript, Jan. 21, 2003, at 7. The Magistrate Judge stated that "there is no question that Orders of mine were disregarded," id. at 17; however, he commented that "Judge Block can't sanction Dr. [Abd-Elrahman] any more than I can, and I cannot say that there is any evidence that EgyptAir per se has acted in bad faith." Id. The Magistrate Judge instructed counsel for EgyptAir to submit an affidavit detailing its efforts to comply with the December 4, 2002 Order, stating that "I can do no more." Id. at 29. While noting that this Court, rather than the Magistrate Judge, would be the ultimate trier of fact, the Magistrate Judge stated that "I could recommend that an adverse inference be drawn from the failure to comply with Orders." Id. at 33.
II.
In respect to the claims relating to the Egyptian passengers, Boeing's Rule 72 objections seek the exclusion of Dr. Abd-Elrahman's affidavit and deposition testimony as a sanction for his misconduct; plaintiffs' Rule 37 motion seeks to strike EgyptAir's forum non conveniens motion as a sanction for the same conduct. EgyptAir concedes that striking the affidavit and deposition testimony of Dr. Abd-Elrahman and striking its forum non conveniens motion relating to the Egyptian passengers "would have the same result," in that its motion would necessarily fail if Dr. Abd-Elrahman's affidavit and deposition were excluded. EgyptAir's Brief in Opposition to Plaintiffs' Motion to Strike EgyptAir's Forum Non Conveniens Motions, at 7 n. 4.
EgyptAir readily admits that Dr. Abd-Elrahman "should have obeyed [the Magistrate Judge's] Order, and his failure to do so cannot be justified or excused." Id. at 2. It argues, however, that Dr. Abd-Elrahman's conduct did not delay the resolution of the forum non conveniens motion, noting that it was Boeing's choice to conduct discovery of EgyptAir's experts prior to filing its opposition papers to the motion, and that Boeing could have elected to litigate the motion without such discovery. EgyptAir also argues that Dr. Abd-Elrahman's refusal to comply with the discovery order, however regrettable, did not prevent the plaintiffs from properly defending against the motion. It further argues that sanctions are not appropriate because EgyptAir has not willfully disobeyed the Order.
In evaluating Rule 72 objections, a ruling by a magistrate judge on nondispositive pretrial matters is subject to a "clearly erroneous" standard of review. See 28 U.S.C. § 636(b)(1)(A). Pretrial discovery questions are generally considered nondispositive and are thus reviewed under this "clearly erroneous" standard. See Hora v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). A finding is "clearly erroneous" if the reviewing court is left with the "definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. United Gypsum Co., 333 U.S. 364, 395 (1948)).
Boeing construes the Magistrate Judge's comments at the January 21, 2003 hearing as holding that a party cannot be sanctioned for the refusal of its expert to comply with a discovery order, and that such a holding is clearly erroneous. However, the Magistrate Judge did not rule that a party could never be sanctioned for the failure of its expert to obey a discovery order; rather, he concluded that EgyptAir had not acted in bad faith, see Hearing Transcript, Jan. 21, 2003, at 17, and that the issue of the utility of Dr. Abd-Elrahman's affidavit and deposition would be for the Court to determine. See id. at 31. Because the Court agrees that EgyptAir did not act in bad faith, the Court does not find the Magistrate Judge's decision to be clearly erroneous.
III.
Under Fed.R.Civ.P. 37(b)(2), if a party fails to obey a discovery order, "the court in which the action is pending may make such orders in regard to the failure as are just." It is well-established that the ability to impose Rule 37 sanctions lies within the sound discretion of the court. See, e.g., Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 267 (2d Cir. 1999). "Under Rule 37, the district court's latitude is wide." Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficienca de Puerto Rico, 248 F.3d 29, 34 (1st Cir. 2001). However, "precluding testimony from the expert under [Rule 37] is a drastic remedy and should only be applied in cases where the party's conduct represents flagrant bad faith and callous disregard of the federal rules." McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y. 1995).
While the Court does not condone Dr. Abd-Elrahman's flouting of the Magistrate Judge's Order, it nevertheless declines to impose the drastic remedy of striking EgyptAir's forum non conveniens motion regarding the Egyptian passengers as a sanction for this conduct; rather, the Court will draw an inference that had Dr. Abd-Elrahman obeyed the discovery order, the material disclosed would have reflected adversely on his credibility. The Court will apply this adverse inference in considering the weight to be accorded Dr. Abd-Elrahman's expert opinion, as hereinafter discussed.
Fed.R.Civ.P. 37(a)(4)(A) provides that "the court shall require the party failing to obey the [discovery] Order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure." (emphasis added). The lack of EgyptAir's bad faith or willfulness does not obviate the plain language of the Rule, nor does the fact that it was its expert who disobeyed the Order. See, e.g., Ortiz-Lopez, 248 F.3d at 33-34 (party retaining expert must bear the burden of expert's failure to comply with federal discovery rules). Therefore, the Court awards plaintiffs, Boeing and Parker Hannifin their reasonable expenses, including attorney's fees, caused by the failure of EgyptAir's expert to obey the discovery order; they will be paid solely by EgyptAir — not its counsel.
EGYPTAIR'S FORUM NON CONVENIENS MOTION I.
Forum non conveniens is a concept that permits a court "in rare instances" to decline to hear a case over which it has jurisdiction. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000). There are three levels of judicial inquiry. The first level is "to determine what deference is owed a plaintiff's choice of forum." Iragorri v. United Technologies Corp., 274 F.3d 65, 73 (2d Cir. 2001). "The more it appears that a domestic or foreign plaintiff's choice of forum has been dictated by reasons that the law recognizes as valid, the greater the deference that will be given to the plaintiff's forum choice." Id. at 71-72.
The Court must next determine whether the moving party has satisfied its burden of demonstrating that an adequate alternative forum exists. See, e.g., Bank of Credit Commerce Int'l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001). This requires that the Court "satisfy itself [among other things] that the litigation may be conducted elsewhere against all defendants." Jota v. Texaco Inc., 157 F.3d 153, 159 (2d Cir. 1998) (brackets in original) (quotation omitted).
If the Court determines that an adequate alternative forum has been established by the movant, it must then balance a series of public and private interest factors: "Only if there is an adequate alternative forum must the court then weigh the relative convenience to the parties against the presumption of the plaintiff's forum selection." El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 677 (D.C. Cir. 1996). "A defendant does not carry the day simply by showing the existence of an adequate alternative forum. The action should be dismissed only if the forum is shown to be genuinely inconvenient and the selected forum significantly preferable." Iragorri, 274 F.3d at 74-75.
The public interest factors to be weighed include "court congestion; the interest of forums in having local disputes decided at home; and, the interest in having issues of law decided by courts of the nation whose law is involved." Carey v. Bayerische Hypo-Und Vereinsbank, AG, 370 F.3d 234, 237 (2d Cir. 2004) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)). The private interest factors include "the interest of the litigants in having the case tried in a particular forum; the relative ease of access to sources of proof; the availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; the possibility of a view of relevant premises, if such a view would be appropriate to the action; and, all other practical problems that make trial of a case easy, expeditious and inexpensive." Id. (citing Gilbert, 330 U.S. at 508).
The claims within the ambit of the forum non conveniens motion include the claims of estates of fifty-six passengers: forty-four are solely against Boeing and Parker Hannifin, six are against EgyptAir, Boeing and Parker Hannifin, and six are solely against EgyptAir. In this latter regard, EgyptAir has not moved for those six claims to be dismissed even if its motion is denied as to the other claims, perhaps recognizing that such limited dismissal, and its concomitant creation of piecemeal litigation, goes against the very purpose of the forum non conveniens doctrine.
The Court has jurisdiction over all of these claims because the claims against the manufacturers are not subject to the Warsaw Convention, and the claims against EgyptAir satisfy the jurisdictional requirements of Article 28 of the Convention. Compare Court's Memorandum and Order issued this date dismissing claims of two Egyptian passengers against EgyptAir for lack of subject matter jurisdiction pursuant to Article 28.
If its motion to dismiss is granted, EgyptAir agrees that it will submit to the jurisdiction of each decedent's domicile, that it will treat as tolled any applicable statute of limitations (subject to certain restrictions), and that it will pay full compensatory damages under the laws of the decedents' home country, although reserving its right to assert all available defenses. EgyptAir also states that, as an additional safeguard, dismissal can be conditioned on the exercise of jurisdiction by the Egyptian and Canadian courts. EgyptAir argues that Egypt and Canada constitute adequate alternative fora because EgyptAir is subject to service of process and jurisdiction in these countries, and because their judicial systems can appropriately handle these litigations.
EgyptAir gives as an example of an available defense the possibility that some of these claims have already been fully compensated and are subject to binding settlement and release agreements.
Boeing counters that EgyptAir's proffered concessions should carry little weight because they would neither facilitate resolution of plaintiffs' claims against Boeing and Parker Hannifin, nor Boeing and Parker Hannifin's claims against EgyptAir. Because these claims would still need to be litigated, Boeing asserts that EgyptAir's contention that the only substantive issue before a foreign court would be compensatory damages is mistaken since liability would remain a core issue, and the critical evidence relating to the crash — which was investigated by the National Transportation Safety Board ("NTSB") in the United States — is far more readily available before this Court than it would be abroad.
Boeing and plaintiffs also note that EgyptAir has not cited any case law in which a third party defendant (which is EgyptAir's position with regard to the substantial majority of claims it seeks to have dismissed) has successfully moved to dismiss a case on forum non conveniens grounds over the objections of both plaintiffs and defendants, and that they are unaware of any such authority.
II.
A. The Deference Owed to Plaintiffs' Choice of Forum
The Second Circuit's decision in Iragorri instructs that the degree of deference accorded a plaintiff's choice of forum should be based on an evaluation of the "lawsuit's bona fide connection to the United States." 274 F.3d at 71-72. "We thus understand the Supreme Court's teachings on the deference due to plaintiff's forum choice as instructing that we give greater deference to a plaintiff's forum choice to the extent that it was motivated by legitimate reasons." Id. at 73. The Circuit Court has also explained that, as a general matter, "when a foreign plaintiff sues in a United States forum such choice is entitled to less deference." Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 71 (2d Cir. 2003).
Plaintiffs state that they chose this forum because it "is the only forum in which plaintiffs could bring this action against defendants Boeing and Parker Hannifin." Plaintiffs' Memorandum in Response to EgyptAir's Forum Non Conveniens Motion in the Passenger Cases, at 10. See Pollux Holding, 329 F.3d at 74 ("a choice [of forum] made to obtain jurisdiction over [a] defendant is an instance where substantial deference would still be generally appropriate"). To evaluate this argument, it is necessary to determine whether Egypt and/or Canada constitute an adequate alternative forum for these claims.
B. Adequacy of the Proposed Alternative Fora
"The alternate forum will normally be adequate so long as the defendant is amenable to process there." DiRienzo v. Chodos, 232 F.3d 49, 57 (2d Cir. 2000). However, in a multi-party case such as this, EgyptAir must establish that "the litigation may be conducted elsewhere against all defendants." PT United Can Co. v. Crown Cork Seal Co., 138 F.3d 65, 73 (2d Cir. 1998). See also Odyssey Re (London) Ltd. v. Stirling Cooke Brown Holdings Ltd., 85 F. Supp. 2d 282, 305 (S.D.N.Y. 2000) ("[P]laintiff may even understate Second Circuit case law, which could be read to require that all defendants be amenable to process in an alternate forum before the doctrine of forum non conveniens may even be invoked."). To demonstrate that its proposed fora are adequate, EgyptAir must therefore establish that the litigations may be conducted in Egypt and Canada against Boeing and Parker Hannifin, as well as against EgyptAir.
1. Egypt
EgyptAir argues that Egypt is an adequate alternative forum for the claims regarding the Egyptian passengers because the airline is subject to service of process and jurisdiction there, and Egypt's judicial system is equipped to ascertain appropriate damages and otherwise resolve all disputes.
Boeing argues that Egypt is not an adequate alternative forum because plaintiffs could not obtain jurisdiction over Boeing and Parker Hannifin in that country. Although Dr. Abd-Elrahman has opined that Egyptian courts could exercise jurisdiction over Boeing and Parker Hannifin, Boeing argues that Dr. Abd-Elrahman "lacks any credibility as a witness because he lied repeatedly under oath at his deposition." Memorandum of Boeing in Opposition to EgyptAir's Forum Non Conveniens Motion in the Passenger Cases ("Boeing Passenger Memorandum"), at 19. Taking a more restrained tack, Parker Hannifin simply notes that "the credibility of [Dr. Abd-Elrahman] cannot be verified." Parker Hannifin's Memorandum of Law in Support of Its Opposition to EgyptAir's Motion to Dismiss on the Grounds of Forum Non Conveniens, at 6.
The Court cannot determine with certainty that Dr. Abd-Elrahman lied repeatedly under oath. However, the reason that the issue of Dr. Abd-Elrahman's truthfulness remains unresolved is Dr. Abd-Elrahman's refusal to obey the Magistrate Judge's Order. While the Court has chosen not to strike Dr. Abd-Elrahman's affidavit and deposition testimony, the Court will not accord it significant weight because, as discussed supra, the Court has drawn an adverse inference as to Dr. Abd-Elrahman's credibility and qualifications. Cf. In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 190 F. Supp.2d 1125, 1131 (S.D. Ind. 2002) ("unreliable experts cannot carry [movant's] burden of persuasion" with respect to establishing an adequate alternative forum).
Even if the Court were inclined to ignore Dr. Abd-Elrahman's willful disobedience of a court order and the serious question of his veracity, his opinion would still be insufficient to establish that Egypt was an adequate alternative forum for all of the parties and claims at issue. Dr. Abd-Elrahman admitted at his deposition that he did not have sufficient knowledge of the relevant facts to determine whether Boeing would be subject to the jurisdiction of the Egyptian courts. See Dr. Abd-Elrahman Deposition Transcript, at 167-68. Moreover, Boeing submitted two affidavits from its own experts on Egyptian law, Mohamed Said Abdel Azziz El Gamal and Dr. A.K. El Geddawy, both of whom persuasively took issue with Dr. Abd-Elrahman's understanding of Egyptian law regarding jurisdiction, and convincingly opined that Egyptian courts would lack jurisdiction over Boeing and Parker Hannifin. For all of these reasons, EgyptAir has not met its burden of establishing that Egypt would be an adequate alternative forum for the relevant claims.
Plaintiffs also filed a supplemental memorandum, to which EgyptAir responded, concerning three cases incorporating four claims of estates of passengers who, while Egyptian citizens, had extensive connections to the United States. Because the Court is denying forum non conveniens dismissal of any of the cases involving Egyptian citizens, it need not reach the additional issues raised in those papers.
2. Canada
In support of that part of its motion seeking dismissal of cases relating to Canadian passengers, EgyptAir submitted the affidavit of H. Patrick Glenn, a Professor of Law at McGill University in Montreal ("Professor Glenn"). Professor Glenn opined that while the Federal Court of Canada would lack jurisdiction over claims against Boeing and Parker Hannifin, the Canadian Superior Courts (commonly known as provincial courts) could exercise such jurisdiction. However, Professor Glenn conceded that he did not believe it would be possible to consolidate cases filed in different Superior Courts; therefore, some of the cases concerning Canadian domiciliaries would have to be filed in Ontario; others in Quebec. See Professor Glenn Affidavit, at ¶¶ 16-17. He also conceeded that it would not be possible to consolidate such proceedings with any action filed against EgyptAir by the plaintiffs in the Federal Court of Canada.
"In Canada, a court may exercise jurisdiction only if it has a `real and substantial connection' (a term not yet fully defined) with the subject matter of the litigation." Tolofson v. Jensen, 3 S.C.R. 1022. When asked about this standard, Professor Glenn conceded that the "real and substantial connection test has been used widely," but added "in my view erroneously." Professor Glenn Deposition Transcript, at 59. He therefore did not address this test in reaching his opinion on jurisdiction in his affidavit. Id.
Boeing's proffered expert on Canadian law, Professor Janet Walker ("Professor Walker") of Osgoode Hall Law School in Toronto, is co-author of a book entitled Canadian Conflict of Laws, which states that "the requirement of `a real and substantial connection' represents an absolute constitutional limit on the exercise of jurisdiction by the provincial superior courts." Jean Gabriel Castel Janet Walker, Canadian Conflict of Laws, at 2.5 (5th ed. 2002). Boeing also cites to Muscutt v. Coucelles (2002) 213 DLR (4th) 577, a recent decision of the Ontario Court of Appeal, which views the "real and substantial" connection test as an established principle of Canadian constitutional law.
Professor Glenn's opinion as to the appropriate standard for determining jurisdiction appears to diverge sharply from that of the Canadian courts that would ultimately determine jurisdiction should this litigation be shifted to Canada. His affidavit does not analyze whether a Canadian court applying the "real and substantial" connection test would find that it had jurisdiction over Boeing and Parker Hannifin, whereas Boeing's expert, Professor Walker, applies this test and concludes that Canadian provincial courts would lack jurisdiction over Boeing and Parker Hannifin. Because its expert's opinion is lacking in this important regard, EgyptAir has not carried its burden of establishing that the Canadian provincial courts would constitute an adequate alternative forum.
C. The Public and Private Interests
Even if EgyptAir had met its burden of establishing that the courts of Egypt and Canada constitute adequate alternative fora, the Court would nevertheless conclude that dismissal was not warranted under the public and private interest factors. As an initial matter, the Court notes that "District Courts should . . . arm themselves with an appropriate degree of skepticism in assessing whether the defendant has demonstrated genuine inconvenience and a clear preferability of the foreign forum." Iragorri, 274 F.3d at 75. EgyptAir has sought to make its desired fora appear preferable through the use of strategic concessions. However, while EgyptAir has stated that it will not contest jurisdiction and will waive any applicable statutes of limitations in the foreign courts should its motions be granted, such concessions mean little since neither Boeing nor Parker Hannifin agreed to them; nor has EgyptAir put forward any evidence that the relevant statutes of limitations in Egypt and/or Canada can be waived by consent of a party. See, e.g., Mercier v. Sheraton Int., Inc., 935 F.2d 419, 426 (1st Cir. 1991) (movant's proffered willingness to waive its right to raise statute of limitations defense in foreign jurisdiction should forum non conveniens be granted insufficient when, inter alia, foreign court might not accept the waiver).
Regarding the public interest factors, EgyptAir argues that the Eastern District of New York has a heavy caseload, that the plaintiffs' home countries have a stronger interest in the litigation than the United States, and that the law of the plaintiffs' home countries will likely be applied to the issue of damages.
While it is certainly true that the Court has a full and lively docket, EgyptAir has not put forward any evidence that the litigation would reach less congested courts in Egypt and/or Canada. Because dismissing the actions would unquestionably lead to more piecemeal litigation, the Court is doubtful that the litigations as a whole would reach a faster resolution.
Turning to the second and third public factors, the United States has a substantial interest in this litigation. Flight 990 was an aircraft that was designed and manufactured in the United States by American corporations; it was certified for flight by the United States Government; it had many American passengers on board; it crashed shortly after leaving New York City, and the crash was investigated by the NTSB.
As to the application of foreign law, while it is possible that the Court will have to apply foreign law at some stage of these cases, it also appears likely that substantial aspects of the litigations, such as Boeing's contractual indemnity claims against EgyptAir, will be governed by American law. The Court therefore declines to give significant weight to this factor.
Regarding the private interest factors, EgyptAir argues that because it has offered to pay full compensatory damages if its forum non conveniens motions are granted, the sole evidentiary issue will be the amount of such damages under the respective laws of Egypt and Canada. EgyptAir argues that the relevant evidence to determine these damages is in the individual plaintiffs' home countries and would, in the case of Egyptians, be in Arabic. It further argues that its offer to pay compensatory damages weighs heavily in favor of dismissal; however, Boeing correctly points out that "EgyptAir simply ignores the fact that the cause of the crash must be litigated with respect to both the plaintiffs' product liability claims, and Boeing's and Parker Hannifin's claims against EgyptAir." Boeing Passenger Memorandum, at 7.
"As we analyze these private factors, we reiterate that plaintiffs should not be deprived of their choice of forum, except upon defendant's clearly showing that a trial there would be so oppressive and vexatious to defendant as to be out of all proportion to plaintiffs' convenience." DiRienzo, 232 F.3d at 66. Evidence from the investigation and the availability of investigators as potential witnesses counsel keeping these cases in the United States; moreover, it is unclear whether there exists any means for Boeing to compel unwilling witnesses to travel to either Egypt or Canada. The Court also notes that the political climate in Egypt may make it difficult to persuade otherwise willing witnesses to travel there on their own volition. See Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, 147 (2d Cir. 2000) (attacks on tourists in Egypt should be considered in the balancing of conveniences). Therefore, even were the Court to find that Egypt and Canada constitute adequate alternative fora, it would nevertheless find that the balance of the public and private interest factors tips strongly in favor of keeping the actions in the United States.
CONCLUSION
EgyptAir's forum non conveniens motion is denied. With respect to Boeing's Rule 72 objections and plaintiffs' Rule 37 motion, they are denied except to the extent that the Court has drawn an adverse inference as to Dr. Abd-Elrahman's credibility and qualifications, and has awarded plaintiffs, Boeing and Parker Hannifin reasonable expenses, including attorneys' fees, under Rule 37, caused by Dr. Abd-Elrahman's failure to obey the Magistrate Judge's Order.
The Court anticipates that the parties will be able to determine the extent of these expenses without the Court's intervention.
SO ORDERED.