Special Masters in E-Discovery and Beyond

The Electronic Discovery Reference Model (EDRM), “a community of e-discovery and legal professionals who create practical resources to improve e-discovery and information governance,” has published a bench book for judges and attorneys titled Using Special Masters and Discovery Mediators to Avoid and Resolve Discovery Disputes. This valuable resource highlights the role of special masters in discovery, especially e-discovery. Because the value of court-appointed neutrals extends well beyond resolution of discovery disputes, the EDRM bench book is a useful springboard for considering the broader utilization of special masters.

The EDRM Bench Book
The EDRM bench book identifies a variety of discovery-related functions that special masters can carry out, particularly in complex cases with a substantial dose of electronic discovery. Special masters can:

• identify discovery needs and suggest reasonable timetables;
• create boundaries for data preservation;
• develop narrowly focused and proportional requests;
• craft collection protocols, including sampling and search techniques;
• evaluate options for leveraging technology to search, cull and review responsive discovery;
• evaluate alternative strategies for protecting confidential information, privileged material and work product;
• agree on a process for further resolving discovery disputes; and
• determine forms of production.

In addition to providing dispute resolution services, special masters may also offer technical education to the presiding judge and counsel concerning matters such as the attributes, advantages and limitations of technology-assisted review tools. The EDRM bench book also highlights some of the benefits of using special masters, including the speed with which decisions can be rendered. In addition, the parties save time and money because special masters (or, as the bench book sometimes refers to them, discovery mediators) are able to head off disputes that would inevitably lead to motion practice. Other advantages include the ability to choose a neutral decision-maker with the appropriate level of expertise and the ability to preserve confidentiality about the details of a litigation when disputes are resolved rather than publicly aired. The EDRM bench book also provides a useful appendix that identifies the rules governing the appointment and use of special masters for each state’s judicial system.

A Wider Lens
To be sure, a court-appointed neutral assists in planning discovery and mediates or adjudicates disputes that arise, but their value is not limited to facilitating discovery. For example, a court may appoint a special master to mediate the merits of a complex case such as a class action. Similarly, a court may assign a neutral, often called a “monitor,” to oversee the implementation of a settlement or consent degree.

Why Not the Judge?
Many, if not all, functions of a special master can be performed by the judge. Nevertheless, there are numerous advantages to shifting some responsibilities to a court-appointed neutral.

• Specialized knowledge and skills: Judges are generalists. They are selected in part because of their ability to quickly become familiar with new legal principles and factual contexts. But they are not expected to be subject matter experts. It would be important for the neutral who will mediate a patent dispute involving a method for conducting DNA analysis to already possess an understanding of both patent law and the relevant science. Furthermore, because of training, temperament and other factors, judges sometimes prefer to delegate certain functions. Some judges, for example, decline to mediate cases at all out of a concern that it will diminish the appearance of neutrality. Others may not have the administrative and policy skills necessary to oversee implementation of a consent decree that mandates, say, the reform of a prison system or the restructuring of a corporate promotion process. Special masters can thus serve functions that judges are disinclined or unequipped to perform.
• Time and attention: Judges are overworked. Even if a judge wanted to perform an in camera review of thousands of allegedly privileged documents or to personally supervise a deposition with obstreperous counsel, a crowded docket would not allow it. Similarly, a judge may not be able to devote half a day every week for a year to trying to settle a class action or to hold individual damages hearings for hundreds of plaintiffs in a mass tort litigation. Yet, at the point when a special master is appointed, it can be established how much time they are expected to devote to the case.
• Choice of decision-maker: Judges are assigned. In any given case, the parties have little or no control over the identity of the judicial officer who will make the decisions. By contrast, even though a special master is appointed by a judge, the selection is generally based on input from the parties.
• Bespoke procedures: Judges are constrained by the rules of the jurisdiction in which they preside. Proceedings before a special master may be subject to procedures tailored to the needs of the litigation. For example, where quick decisions are important, an order of appointment can incorporate deadlines for the special master to render determinations. Similarly, the decisions of the court-appointed neutral may be subject to a different standard of review than would otherwise apply. Where it does not contravene other procedural rules, the decision of a special master on a discovery issue may be subject to limited review, to be reversed only for manifest disregard of the law. Indeed, the parties can agree that the neutral’s decision is final and not reviewable at all.

As the EDRM bench book demonstrates, special masters are a resource that counsel should encourage courts to utilize in dealing with complex discovery issues because these neutrals bring special skills and additional capacity to the process. By the same token, court-appointed neutrals provide similar benefits outside the discovery context, whether mediating settlements, supervising compliance with court orders, adjudicating individualized claims or performing a variety of other vital functions.

Hon. James “Jay” C. Francis IV (Ret.), is an arbitrator, mediator and special master/referee at JAMS handling disputes involving business and commercial matters, civil rights, class actions and mass torts, e-discovery, employment, federal law, financial markets and intellectual property. In addition, Judge Francis is a member of EDRM's Global Advisory Council.