Hon. Wayne D. Brazil (Ret.)

T: 415-982-5267
F: 415-982-5287
Special Master/Discovery Referee

Having devoted a substantial percentage of his 25 years as a Magistrate Judge to addressing discovery disputes and to pre-trial case management, Judge Brazil understands what a central role these matters play in the litigation process.  He takes discovery disputes very seriously (and addresses them promptly) because he knows how a case plays out often is affected most by discovery and case management.  

Judge Brazil also understands how important it is to strike an appropriate balance in the pretrial period between efficiency and fairness – so his goal is to help parties learn what they need to know while moving their cases forward on a disciplined time track.  Toward these ends, he encourages parties to work informally with him to develop well-focused case development plans and then to bring to him immediately any problems that surface.  He is available on very short notice to host informal conversations with counsel to help them craft sensible solutions – but if that process fails to produce a resolution, he fixes a tight briefing schedule and a prompt date for a hearing (often by phone).  He knows that in the discovery arena, parties often need resolutions right away – not weeks after a dispute surfaces. 

Judge Brazil also appreciates how the presence of a neutral, dispassionate referee can reduce friction and increase the productivity of especially sensitive individual discovery events – so he makes himself available to attend depositions, critical document productions, or property inspectins when counsel believe that his presence will result in more efficient and more useful discovery events.  

Judge Brazil also understands that occasionally a discovery dispute raises issues that are especially sensitive (e.g., re privilege, work product, or trade secrets) or that are complex and cut close to the heart of a case.  Judge Brazil is uniquely qualified to address such matters.  His published empirical studies of civil discovery have been cited multiple times by the national Rules Committees that have crafted revisions of the Federal Rules of Civil Procedure.  And he has authored widely cited, cutting edge opinions about privileges and work product.  When warranted by the circumstances, he has produced sophisticated, subtle dispositions of very challenging pretrial disputes.

Since joining JAMS a few years ago, Judge Brazil has been appointed to serve as a special master or a referee in a range of case types, including matters sounding in patent, breach of commercial contract and fraud, insurance and public regulation of the insurance industry, and labor and employment law.

Recent Appointments As Special Master or Referee

  • Special master appointment by federal district judge to manage and adjudicate disputes re discovery and motions to seal in two large, complex, and vigorously contested patent cases.
  • Referee charged with responsibility to oversee discovery in major state court proceedings pitting state controller (and insurance commissioner) against several large insurance companies.
  • Referee charged with responsibility for managing discovery and resolving discovery disputes in complex commercial case between competitors for control over retirement accounts of public employees.
  • Referee deposition in case involving whistle-blower in dispute between school district and the company providing its bus transportation.

Contributions to Revising Rules of Civil Procedure & Evidence

  • Served for six years on the Committee of the Judicial Conference of the United States that writes the Federal Rules of Civil Procedure
  • Served for one year on the Committee of the Judicial Conference of the United States that writes the Federal Rules of Evidence
  • Served for two years on the Joint Commission of the Judicial Council of California and the California State Bar charged with systematically reviewing and rewriting California’s discovery rules
  • Served as the reporter for the Special Committee of the Judicial Conference of the United States charged with formulating the judiciary’s contributions to the Civil Justice Reform Act.

Representative Published Opinions

  • Sharper Image Corp. v. Honeywell Intel, Inc., 222 FRD 621 (N.D. Cal. 2004). Three years before Seagate, consider whether invoking advice of counsel defense to willful infringement claim should constitute waiver of attorney-client privilege re party’s communications with outside counsel.
  • Jumpsport, Inc. v. Jumpking, Inc., 213 FRD 329 (N.D. Cal. 2003). Develop two pronged test for determining whether a document was prepared “in anticipation of litigation” as that phrase is used under federal work product doctrine.
  • Electro Scientific Industries, Inc. v. General Scanning, Inc., 175 FRD 539 (N.D. Cal. 1997). Exploring whether certain kinds of disclosures of content of attorney-client communications should constitute waiver of privilege and, if so, how to identify scope of such waiver.
  • Laser Industries. Ltd. v. Reliant Technologies. Inc., 167 FRD 417 (N.D. Cal. 1996). Analyze test for crime-fraud exception to attorney-client privilege and develop procedure for litigating this exception that appropriately balances competing interests.
  • Hewlett-Packard Co. v. Bausch & Lomb, Inc., 116 FRD 533 (N.D. Cal. 1987). Discoverability of reports generated by testifying experts.
  • Kelly v. City of San Jose, 114 FRD 653 (N.D. Cal. 1987). Develop requirements that public entities must satisfy to protect documents or communications under the ‘official-information’ privilege.
  • In re Convergent Technologies Securities Litigation, 108 FRD 328 (N.D. Cal., 1985) Explicate broad-ranging implications for discovery practices of the 1983 amendments to the discovery rules, especially the imposition of the proportionality requirement.

Books, Articles, and Chapters in Treatises

  • Managing Complex Litigation: A Practical Guide to the Use of Special Masters (with Geoffrey C. Hazard and Paul R. Rice), American Bar Foundation, 1983
  • 3 Moore’s Federal Practice, Chapter 16, Pretrial Conferences; Scheduling; Management (Matthew Bender 3d ed. 1997 and updates thereafter)
  • 7 Moore’s Federal Practice, Chapter 37, Failure to Make Disclosure or Cooperate in Discovery: Sanctions (Matthew Bender 3d ed. 1997 and updates thereafter)
  • Special Masters in Complex Cases: Extending the Judiciary or Reshaping Adjudication?, 53 University of Chicago Law Review 394, Spring 1986
  • Special Masters in the Pretrial Development of Big Cases: Potential and Problems, 1982 A.B.F. Res. J. 287, Spring 1982
  • Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 A.B.F. Res. J. 787, Fall 1980 (cited twice in Advisory Committee's Note to support 1983 amendments to Rule 26 of the Federal Rules of Civil Procedure)
  • The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1295 (Fall 1978) (cited in Advisory Committee's Notes to support 1983 and 1993 amendments to Rule 26 of the Federal Rules of Civil Procedure).

Honors, Memberships, and Professional Activities

  • Recognized as a Top California Neutral "Rising Star," Daily Journal, 2012
  • The Mediation Society of Northern California: Annual Award for “Outstanding Contribution in the Field of Alternative Dispute Resolution,” 2007
  • California Dispute Resolution Council: Donald Weckstein Award for “Outstanding Contribution to the Profession of ADR Neutrals,” 2007
  • American College of Civil Trial Mediators (national association headquartered in Florida): award for “Outstanding Achievement in the Advancement of Alternative Dispute Resolution,” 2005
  • "Using Mind Over Matter," ADR Profile, Daily Journal, September 14, 2012

Background and Education

  • D'Alemberte-Raven Award, American Bar Association Secton of Dispute Resolution, 2009
  • Member, American Bar Association Section of Dispute Resolution
  • Law Professor (“Professor from Practice”), Berkeley Law (Boalt Hall), University of California, Berkeley, full-time 2009-2011; part-time 2011-2014
  • United States Magistrate Judge, United States District Court, Northern District of California, June 1984-October 2009
  • Professor of Law, Hastings College of the Law, University of California, San Francisco, California, Courses: Civil Procedure and Civil Rights, 1980-1984
  • Associate Professor of Law, University of Missouri, Columbia, Federal Courts, Civil Procedure, Professional Responsibility, 1978-1980
  • Farella, Braun & Martel, Litigation Associate, San Francisco, California, 1975-1977
  • J.D., University of California, Berkeley Law (formerly Boalt Hall School of Law), Order of the Coif, 1975
  • Ph.D. in American Political and Cultural History, Modern European and American Intellectual History, Harvard University, 1975
  • M.A. in American History, Harvard University, Woodrow Wilson Fellow, 1967
  • B.A., Stanford University, Graduated with Great Distinction, Lloyd W. Dinkelspiel Award, Phi Beta Kappa, 1966

Disclaimer

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