Jurisdictional Discovery: Changing Standards and Burdens

The Supreme Court’s 2017 landmark rejection of litigation tourism in Bristol-Myers Squibb v. Superior Court (BMS), 137 S. Ct. 1773 (2017), greatly changed the landscape for defendants’ personal jurisdiction challenges and clarified the high burden plaintiffs must now meet to overcome such challenges. Beyond its substantive personal jurisdiction holding, however, BMS has other far-reaching implications percolating through lower courts. One such issue many lower courts are now grappling with is jurisdictional discovery—when is it permitted or even required, what burden must plaintiffs meet to obtain jurisdictional discovery, how do courts determine what is an appropriate topic of jurisdictional discovery, and how may facts discovered in jurisdictional discovery may be relied on by lower and appellate courts deciding jurisdictional challenges? These are all issues on which lower courts have had varying approaches, and most appellate courts have not even begun to consider them post-BMS. This article attempts to address these open questions.