A couple of thoughts that are on my mind today about electronic discovery, concerning a couple of articles related to the subject. The first, which I will talk about today (I will return to the other tomorrow, assuming no breaking news pushes me on to a different topic) has to do with some comments in this article here, which concerns continued disputes over the existence in Massachusetts of a court session dedicated to business disputes, or to so-called complex litigation. For those of you who don’t practice in Massachusetts, the state court system here has a judge rotation system that, at a minimum, it is fair to say tends to seem somewhat unusual, at best, to out of state lawyers litigating here. Under the system, rather than having one judge assigned to a case from beginning to end, the judges rotate from courtroom to courtroom and often from courthouse to courthouse, while the cases stay put in the same courtroom (known here as the cases staying in a particular “session”), with the result that different judges preside over the same case at different times. There are historical reasons for this, and people, including me, have lots of strong opinions, both pro and con, about this system, none of which I will delve into here. The business litigation session, among other things, mostly is a change from this rotation system; for cases deemed to qualify for the session, they stay with the same judge, who sits continually in the business litigation session.
Okay, with the history and context lesson done, on to my point. In the article, the suggestion is made that one potential benefit of litigating a business dispute in the state’s business litigation court is avoiding the electronic discovery rules of the federal courts, where most parties, as long as they can obtain jurisdiction, are likely to file complex business cases. I don’t really think that idea is quite right. In the first instance, avoiding the electronic discovery rules doesn’t change the fact that, in almost every complicated business dispute, you are going to have significant issues related to discovery of electronically stored information. You are not going to avoid this by being in state court, but are only going to avoid the now applicable federal rules governing disputes over such data. The federal courts have far more resources to deal with extensive discovery disputes over these issues than do the state courts in Massachusetts, including, among other things, lower case loads per judge and access to magistrate judges to assign discovery disputes to. So it may well be that a party that is anticipating electronic discovery and the discovery disputes that inevitably accompany it and chooses the state court system for that reason will simply be inadvertently shooting itself in the foot if it elects state court for that reason. It is not avoiding such discovery, only the federal rules that govern it, while putting the issue before a court with less resources to handle it. And second, if there is federal court jurisdiction over the case, the idea of preferring the state court’s business litigation session for purposes of avoiding the federal electronic discovery rules only makes sense if all parties to the case agree to doing so – otherwise, the case is simply going to get removed to the federal court by the defendant. So I don’t really think that the existence of the federal electronic discovery rules is really an argument for the existence or use of the state court’s business litigation session.