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Special Masters: A Cost Effective Method for Handling eDiscovery

Special Masters - A Cost Effective Method for Handling eDiscovery

Special Masters: A Cost Effective Method for Handling eDiscovery

Litigants and courts are always on the lookout for ways to expedite the disposition of litigation. One of the most cost-effective methods for doing so is engaging a special master to help manage discovery.

Why Seek the Appointment of a Special Master?

The value of using special masters may come as a surprise to some. Special masters are sometimes seen as a costly option, reserved just for cases involving extreme mistrust among adversaries. However, special masters can do so much more than just babysit matters with truculent attorneys. Instead, special masters can promote efficiency in discovery, the phase of litigation that is most likely to break down and cause delays to case resolution.

Consider that parties often engage in protracted negotiations for months regarding disputes over search terms, privilege logging, and other complex discovery issues. Unable to reach a resolution by themselves, the parties then seek judicial relief, engaging in motion practice. Such a process is lengthy, costly, and—depending on the outcome—may do very little to advance a matter toward resolution.

Contrast that scenario with a lawsuit where the court has appointed a special master to help manage discovery. Rather than exchanging an endless series of letters that often harden the parties’ positions, counsel meet on a weekly basis with the special master, airing their disputes and working to resolve differences. In return, the special master helps the parties mediate their disagreements until they are either addressed or have crystalized such that they can be addressed through concise letter briefs.

Though there is a cost for special masters, paying a master to work through the issues is often more cost effective than paying counsel to labor indefinitely through the meet and confer process and then motion practice. Moreover, special masters are duty bound to handle matters expeditiously while courts frequently must defer handling discovery and other aspects of civil litigation to address criminal matters. Using a master to resolve discovery disputes more expeditiously can ultimately yield significant cost savings for clients.

What Discovery Matters Merit the Appointment of a Special Master?

While many cases would benefit from a special master’s involvement, the predominance of certain ESI discovery issues involving preservation, search, and privilege logging are particularly appropriate for a master. Masters can provide organization and framework for investigating and staging the issues, along with technical knowledge for helping to address disputes. Such knowledge and skills have come in handy in matters such as Small v. University Medical Center (preservation), In re Vioxx (privilege logging), and Rio Tinto v. Vale (search).[1]

Using special masters with technical understanding of digital age ESI, information systems, and communication methods is particularly important. Discovery disputes have proliferated over issues involving Slack and Microsoft Teams, along with messaging applications like iMessage and WhatsApp, metadata, databases, and so forth. Without the help of masters who possess technical expertise, courts are at the mercy of counsel—who may be uninformed themselves—to advise them regarding the interplay between complex legal and technical issues affecting discovery. Thus, technologically sophisticated masters can help the parties and courts get the issues right and more effectively advance a matter toward resolution.

Beyond these issues, special masters may prove invaluable in any number of complex settings for helping manage and address discovery disputes. This includes multidistrict litigation (MDLs), cross-border discovery disputes that may involve specialized issues of foreign or international law, and seizures of ESI under trade secret law.

Key Considerations for Using Special Masters in Discovery

When appointing a special master to handle discovery, there are various issues to consider including the following:

Appointment Order. The appointment order determines the scope of the master’s authority, what issues may or may not be considered, the timeframe for addressing those issues, and whether the master can communicate ex parte with the court. How these items are addressed in the appointment order is a critical issue for all parties in the litigation.

Allocation of Payment. The question of who will pay for the special master is a crucial consideration. Under Federal Rule of Civil Procedure 53, courts may allocate payment responsibility based on a variety of factors including “the nature and amount of the controversy, the parties’ means, and the extent to which any party is more responsible than other parties for the reference to a master.”

Standard of Review. Another key issue is the standard of review in connection with challenges to master rulings and reports and recommendations. FRCP 53 requires courts to review de novo party objections to the special master’s factual findings and legal conclusions while using an abuse of discretion standard for rulings on procedural matters. Nevertheless, the parties may opt to modify the de novo standard for factual findings according to the needs of the case.

Special Master’s Experience. A final consideration involves selecting a special master with the right background and experience for the matter at hand. Almost reflexively, parties may turn to a retired judge whose reputation and experience provides a certain gravitas needed to cut through discovery obfuscation. In addition, counsel and courts often turn to lawyers with technical expertise and specialized knowledge of discovery to manage tricky issues involving search and preservation. Driven’s expert consultants have served as court-appointed special masters and ESI experts to manage any number of discovery issues in the cases in which they have served.

Webinar on Special Masters and eDiscovery

To provide greater understanding regarding the considerations for using special masters in discovery, we invite you to watch a recording of Driven, Inc.’s webinar featuring U.S. Magistrate Judge Maria A. Audero (Central District, California), retired Third Circuit Court of Appeals Judge Thomas I. Vanaskie, and Kevin F. Brady (Senior eDiscovery Counsel, Volkswagen Group of America) as they discuss the issues in detail.

[1]Small v. Univ. Med. Ctr. of S. Nevada, 13-cv-0298-APG-PAL, 2018 WL 3795238 (D. Nev. Aug. 9, 2018); Rio Tinto PLC v. Vale S.A., 14-cv-3042, 2015 WL 4367250 (S.D.N.Y. July 15, 2015); In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 798 (E.D. La. 2007).

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.