Keeping the Dam From Breaking: Six ways a special master can help keep cases moving during the pandemic

Even though many courthouses across the country are empty or hearing only a limited number of cases due to the coronavirus pandemic, cases are still being filed. While the pandemic has affected the processing of cases, litigants, their lawyers and the courts are working to keep cases moving forward.

Dealing with discovery and scheduling trials—let alone conducting them—have become more challenging, especially with regard to jury trials. Relying upon electronic filing and various virtual platforms to conduct business, judicial officers and their staff have been trying to process cases efficiently, despite the constraints of COVID-19. Their efforts have focused on status hearings, motions, pretrials and nonjury trials, but jury trials—especially criminal jury trials—present substantial challenges.

Attempts at efficiently managing a judicial docket during the pandemic have created pressure on the judicial system, similar to the increase in hydrostatic pressure on a dam after a prolonged rainfall. The goal is to release this pressure in a controlled manner to avoid a deluge whenever the processing of cases returns to normal (however that will be defined).

At this time, an experienced special master can assist parties and courts to control the reduction of any backlog in an orderly and timely fashion. By being available to parties, working closely with counsel and issuing prompt decisions on contested matters, a special master can greatly assist parties and help reduce the workloads of judicial officers.

Here are a six specific ways that special masters can assist parties and courts:

1. Keep motions off judicial dockets (special master decision-making):
A special master, with authority defined in the court’s appointment order, can facilitate the prompt resolution of disputes, thus avoiding clogging the docket with motions. Some specific suggestions are:

• Impose word limits on motions; oppositions (750 words each, including footnotes); and reply memoranda (250 words).
• For some number of significant motions (e.g., defining Rule 26 relevance or case-defining significance), increase the word limits to 2,500 words for the motion and opposition, and 1,000 words for the reply.
• Grant the special master the power to make final decisions on issues within his or her scope of authority, with the parties retaining the right to seek certification of the special master’s ruling to the judicial officer. Denials of privilege claims or work product protection are appealable to the judge upon request of the party asserting the privilege claim or work product protection.
• Have the special master issue preliminary findings that outline his or her positions on the various arguments and his or her assessment of the applicable facts and case law. Within a prescribed time period, any party may request, without stating a reason, that the special master issue a Rule 53 report and recommendation. If no party requests one, this represents acceptance by the parties of the preliminary findings.

2. Develop an efficient, focused case management order

• Counsel should meet and confer on the development of a comprehensive case management order (CMO) or orders to govern discovery, privilege and electronically stored information (ESI). Counsel should then supply the special master with a draft CMO outlining matters on which counsel agree and briefly noting positions on matters lacking agreement.
• The special master should meet with counsel to discuss the CMO and share his or her thoughts about it to see if some differences can be resolved.
• After consideration of the views of counsel, the special master should submit a  draft CMO to counsel.This gives counsel a final opportunity to comment, and the special master can then address the comments of counsel before submitting the proposed CMO to the court.

3. Meet with counsel

• The special master should meet early and often with counsel to discuss the progress of discovery, upcoming discovery and anticipated problems/issues.
• By engaging in regular discussions with counsel, the special master may be able to assist counsel in resolving problems without necessitating the filing any motions.

4. Resolve discovery disputes

• The meet and confer should be a fulsome process that elicits the underlying concerns of counsel and involves some level of “human” contact between counsel beyond written communication—either in person, by telephone or virtually.
• The special master should meet with counsel after the meet and confer to discuss the issues and, if possible, assist in narrowing the disputed matters.

5. Resolve ESI issues

• Involving a special master very early in the ESI process can reduce the time and cost of dealing with ESI, usually through discussions with the parties and, where appropriate, the parties’ ESI experts/vendors.
• Use of a special master can facilitate an early focus on proportionality.

6. Address privilege and work product protection claims

• A special master without the responsibility of overseeing a judicial calendar should have more time to focus on the documents and claims advanced by the parties.
• Using a special master to assess these claims and provide a reasoned analysis can reduce appeals to the judicial officer on the recommended rulings on claims of privilege and work product protection.

The challenges during this pandemic are many, but use of the proper tools now can benefit parties and assist the courts to keep the cases moving.