The Evolving Role of the E-Discovery Special Master

By Judge Richard A. Levie (Ret.)

Judge Richard A. Levie (Ret.) is widely respected for his ability to manage and resolve the most complex cases. As a special master, Judge Levie works with the parties to develop a case management order to move cases forward in an efficient and cost-effective way and to resolve discovery, privilege/work product protection and electronic discovery disputes.

E-discovery has become a fact of life in litigation. It is a factor in most of today’s disputes, both large and small. Yet the way e-discovery impacts cases, judges and parties is evolving, and so are the ways delays and costs can be mitigated. E-discovery special masters have influenced this evolution, and their role has also changed over time. While it still involves moving discovery forward in an efficient and cost effective way and minimizing the use of judicial resources, it is now a far more precise and focused role.

Perhaps the most noticeable change is the growing familiarity with e-discovery among judges. Judges and Magistrate Judges have become much more comfortable with e-discovery, and that enables them to resolve issues in a more expeditious manner. The more comfortable they have become with e-discovery, the more comfortable attorneys and their clients have become as well. This has led to a much more refined and focused process. Attorneys will still argue over e-discovery, but their disputes will be more informed. As a result, the role of e-discovery special masters is more focused as well. With better-informed judicial officers and attorneys, e-discovery special masters can concentrate on highlighting and surfacing the most important issues facing both sides. When parties are negotiating from a place of comfort and familiarity, the e-discovery special master can play an even more valuable role in keeping costs down and increasing efficiency.

Working with parties that are more comfortable with e-discovery also means special masters can help them concentrate on what is necessary. For example, I recently helped parties narrow down the search terms that would be used to make some initial cuts in terms of finding responsive documents. The parties were able to agree as step one on a series of search terms that really needed to be used. This is a long way from the early days of e-discovery when parties wanted to reach for the whole pie and structure search terms to give the broadest results possible. E-discovery special masters can now foster conversations between parties that lead to decisions based on fact rather than the fear of missing something crucial in a search. The results in terms of cost savings and efficiency are substantial.

The administrative role of e-discovery special masters has also evolved. In particular, they are issuing preliminary findings that have significant weight with parties. Recently, instead of issuing reports and recommendations (R&Rs) on disputed issues, I issued a preliminary finding. This gives parties a quick understanding of how the special master would eventually frame an R&R, and often they accept the preliminary report. This eliminates the need for more time and cost to create the R&R (a public document). It also keeps work off the docket of busy judges and avoids parties appearing before a judge to arguing points that may not be perceived by the bench as quite as important as they are to the parties.

Judicial officers, lawyers and clients are becoming more comfortable with e-discovery and how it’s used in litigation. Because of the role they play in focusing parties on facts over fear, e-discovery special masters have helped in that regard. As a result, their role has also changed, to become one that provides for even greater efficiencies and cost savings for parties and the courts.