Expanded Use of Special Masters

Viggo Boserup, Esq. is a JAMS neutral based in Southern California. He is an accomplished mediator who is widely respected by counsel for his impartiality in treating all parties fairly and his ability to quickly identify critical issues. He can be reached at vboserup@jamsadr.com.

During the last 10 years, we have witnessed expanded and more complex caseloads in both the federal and state court systems. Due to the proliferation of issues, which are beyond the scope of traditional courts, in areas including natural sciences, technology, and financial complexity, the already overburdened judicial system has come to depend on outside assistance to assure the delivery of a system that is both just and accessible.

This has led to the expansive use of special masters appointed either by the court or by the parties. Whether such appointments refer to special masters or to judicial references, the functions served are the same: these special masters, or judicially-appointed referees, provide the narrow, but intense focus required to deal with complex technological or scientific issues for which sitting judges may not be qualified due to either background or time limitations. They may also supervise settlement processes or implement settlements once they have been reached. In short, special masters are quasi-judges with specifically defined duties designed to relieve the court of functions beyond its core responsibilities. Additionally, they leave time for that court to deal with issues that are within its normal scope: deciding who is right and who is wrong under the law.

Special masters can be particularly useful in e-discovery. Since more than 90 percent of U.S. companies eventually wind up in litigation, and since discovery can consume more than 50 percent of the litigation budget and often exceed the amounts in dispute, the effective management of discovery is critical in an effort to curtail costs.

Effective management of e-discovery requires substantial and significant prior planning by all parties, and that is best done collaboratively. The special master can facilitate dialogue and agreements among parties on very basic issues such as scope, search and retrieval issues, protocols for identifying witnesses, locations of electronically stored information, preservations protocols, forms of production and protective orders to deal with the multiple privilege issues inevitable with large volumes of documents. The cost-sharing inherent in a single special master versus multiple experts each billing the client is obvious.

If the special master has the knowledge and is afforded the appropriate level of authority, he or she can be instrumental in reducing the litigation costs normally associated with issues concerning the scope of e-discovery, the form of production and a rational approach to search and retrieval. Thus, through the appointment of a special master, the litigation process can accomplish in days what could take many months of litigation.