eDiscovery Special Masters – The New Kid on the Block is Here to Stay

April 21, 2009

Authored By: Fernando M. Pinguelo and Sheetal Patel

Citation: Shira A. Scheindlin, Special Masters And E-Discovery: The Intersection Of Two Recent Revisions To The Federal Rules Of Civil Procedure, 30 CARDOZO L. REV. 347 (2008)

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e-Lesson Learned: Appointments of Special Masters to manage discovery in cases involving a substantial amount of electronically stored information (ESI) may become more the rule than the exception. As The Honorable Shira A. Scheindlin (of Zubulake v. UBS Warburg fame) and Jonathan M. Redgrave observe, the recent revisions to the discovery rules may facilitate such appointments, which would consequently increase judicial efficiency in cases with substantial electronic records.

In a recent law review article, The Honorable Shira A. Scheindlin, U.S.D.J. (Southern District of New York) and Jonathan M. Redgrave address the recent revisions to Rule 53 and discovery rules, and articulate appropriate uses of special masters in the growing world of e-discovery. They predict eDiscovery Special Masters to be the next big thing in e-discovery.

Revisions to the Rule

Judge Scheindlin begins the article by addressing the changes to Federal Rule of Civil Procedure 53 (governing the appointment of masters). The article notes that this rule revision was “undoubtedly intended to expand the use of masters in new directions in order to assist courts in coping with ever-increasing caseloads and in addressing difficult issues that require disproportionate judicial attention and expertise not otherwise available to the court.” In contrast to the original Rule 53, which allowed only a limited role for masters, the revised rule allows for the use of special masters on an as-needed basis with the parties’ consent, or, by court order in exceptional circumstances.

The article also discusses the 2006 revisions to federal discovery Rules 26 through 37 and Rule 45. Judge Scheindlin observes that these revisions took into account the digital revolution that has resulted in a substantial amount of records being generated and stored in an electronic format. The article articulates that both these revisions have a collaborative effect in expanding the role of special masters in e-discovery.

Trends in Special Master Appointments in E-Discovery

Next, the article examines reported and unreported cases regarding the appointment of special masters and discusses trends based on these cases as well as on other sources.

Specifically, the article identifies four roles that a special master can play effectively in the context of e-discovery:

(1) facilitate the e-discovery process;

(2) monitor discovery compliance related to ESI;

(3) adjudicate legal disputes related to ESI; and

(4) adjudicate technical disputes and assist with compliance on technical matters, such as conducting computer and system inspections.

Despite the increase in the appointments of special masters to address e-discovery issues, the article acknowledges that a number of courts have declined to make such appointments. These courts cite the following reasons for declining to appoint special masters: (1) the master’s responsibilities can be handled by the parties’ experts or by the court itself; (2) computer searches by special masters are intrusive and only necessary when the contents of the computer may go to the “heart of the case,” and not when the party is simply looking for “impeachment” material; and (3) the failure of a plaintiff to substantiate a claim in a way that would justify an intrusive review by a special master.

Because courts use their discretion for such appointments, the article asserts that if a party deems it advantageous to seek appointment of a special master, they may need to provide some justification for that appointment and convince the court that an appointment will facilitate smooth case advancement. Specifically, the article notes that a special master appointment is more likely where the parties have: (1) clearly identified the proposed special master’s purpose and tasks, and (2) persuaded the court that the special master’s role will reduce the burden on the judicial officer and expedite the judicial proceedings at hand.

Thus, the article advocates that since all “judges are not and cannot be experts on electronic hardware and software that enable people to create, store, retrieve, and search ESI,” it would be more effective and efficient to appoint court adjuncts with specialized knowledge in cases with substantial amount of ESI. “The appointment of a special master may make it possible to accomplish in days what would otherwise consume months of litigation and require both sides to incur substantial costs.”

What This Means For You

Although requesting a special master may not be cost-effective or feasible for some cases, for cases involving multiple parties, extensive records, or complex or technical issues, there may be an increase in the number of such appointments in the near future. The successful and regular use of special masters in e-discovery also depends on parties’ mutual agreement about the significance and effectiveness for such masters in complex e-discovery cases. Thus, litigants should be open to the benefits of having special masters; and if deemed appropriate, diligently make an effort secure one by clearly identifying the proposed master’s tasks and persuading the court to make such an appointment. The article appends sample orders appointing eDiscovery Special Masters as well.

Fernando M. Pinguelo, a partner of Norris McLaughlin & Marcus and Co-Chair of its Electronic Discovery Group, devotes his practice to complex litigation and eDiscovery. Fernando teaches an eDiscovery course at Seton Hall Law School.

Sheetal Patel is a third year student at Seton Hall Law School and an Associate Editor of the Seton Hall Circuit Review.

Article posted on April 21, 2009 at 4:00 AM |