Georgetown Law School campus, Washington, D.C.
Image by Postdlf
The use of e-discovery "special masters" -- who help parties frame and execute the discovery of electronically stored information -- is a growing trend. At last week's Georgetown Law Advanced eDiscovery Institute, there were podium discussions about court-related pilot programs as well as informal conversations among attendees about the new job opportunities.
On a Friday panel, Judge Joy Conti of the U.S. District Court for the Western District of Pennsylvania outlined a pilot project in progress to help ligitants identify and use special masters. Conti, who chairs the court's Alternate Dispute Resolution Implementation Committee, said the court decided to create a list of approved special masters. Finalists were selected for the one-year pilot effort, which began in May, she explained.
Acccording to the court's website, a subcommittee, led by Judge Nora Fischer, and including court IT personnel and local practitioners with EDD experience, provided recommendations to the ADR committee, ultimately resulting in approved application and selection criteria. "The final set of criteria approved by the ADR Committee includes active bar admission; demonstrated litigation experience, particularly with electronic discovery; demonstrated training and experience with computers and technology; and mediation training and experience."
Conti told the Georgetown audience that mediation was a very crucial part of the qualifications, because one of the goals of the program was to help expedite resolutions of the cases.
The court created a set of pro forma orders, including orders that clarify that the special master is empowered to explore case resolution; to investigate; and to provide the court with specific findings of facts regarding adequacy, appropriateness, and proportionality of the e-discovery.
The special masters, she said, are bound by stipulations, and orders, including restrictions on ex parte communication. "They don't work for free -- they must be "compensated, at prevailing rates -- no pro bono," she said. The special master must also create an EDD budget: "If disputed, they can come to court," she noted. The special master's fees must be paid monthly, added Conti.
The approved special masters are now listed on the court website. Among the current cases that are effectively using a special master is a "large, complex environmental case that will go on for years," she noted. (The court is also conducting a pilot program on patent litigation that includes EDD components, see Mark Michels' post on EDD Update.)
Kroll Ontrack's On Point blog, reported last June about the launch of the Pennsylvania program, reminded readers about another effort, in the 7th U.S. Circuit Court of Appeals, that has already completed its first phase. The 7th Circuit Electronic Discovery Pilot Program, in its May 2010 report on Phase One, reported that the participating judges "overwhelmingly" felt the program had a positive effect on the test cases, said the blog post, attributed to Kroll's "thought leadership team." The judges felt that the involvement of e-discovery liaisons "contributes to a more efficient discovery process."
"The 7th Circuit's findings and the basis for the [EDD Special Masters] program are encouraging, and reinforce the notion that many of the problems in the e-discovery process stem from a general lack of knowledge which e-discovery liaisons can provide until the bench and bar at large catch up," the post said. "Time will tell if the EDSM program is successful, but in light of the consistent difficulties seen in e-discovery case law, any attempt to improve the process will likely be worthwhile."
Austin, Texas-based attorney Craig Ball, who writes LTN's e-discovery column, "Ball in Your Court," frequently serves as an EDD special master, and summed up the typical job description in a May 2009 LTN article, "Special Masters."
"It's an amalgam of judge and expert and Oprah, with a lot of computer geek," explained Ball. "Sometimes, I'm standing in the judge's shoes kicking rumps to get a derailed, contentious e-discovery effort back ontrack. Other times, I'm the court's neutral insuring that responsive ESI is produced and privileged information is protected. Or, I'm the computer forensic examiner tasked with determining if a litigant destroyed electronic evidence and if it can be recovered," he notes.
"Untangling a failed e-discovery effort takes a mix of technical expertise and legal experience. It's not enough to know what litigators want. A special master for ESI must also know what it takes to get it." While those job requirements might scare away the meek, they are a magnet for Ball and other under-the-hood e-discovery professionals who get bored easily: Says Ball: "It's a solitary job with grueling hours, and I love it."
In federal practice, the appointment of a special master is governed by Fed. R. Civ. P. 53, Ball explains. A court "may appoint a master with the parties' consent, where the appointment is warranted by some exceptional condition" or to address pretrial matters that cannot be effectively and timely addressed by an available judge.
State rules, of course, vary. In Ball's home state, "Rule 171 of the Texas Rules of Civil Procedure (TRCP) grants judges the authority to appoint a master in exceptional cases and for good cause. Additionally, Chapter 154 of the Texas Civil Practice and Remedies Code provides the court with authority to refer a case to an impartial third party.
Ball now limits his law practice to serving as court-appointed special master, EDD consultant, and computer forensics expert and speaker. "My first formal appointment as an electronic evidence special master was more than 10 years ago, in a messy case involving the disposition of a laptop computer holding privileged data. Back then, both sides wanted the contents of the machine printed out. Even then, that proved an impossibility."
Today, there are many ways special masters can help speed litigation, said Ball. Among them, "by breaking decisional logjams in areas where the court (and often counsel) are uncertain." They can gather and present technical and other information that is crucial to decision making; and/or "use their knowledge of information systems and litigation to balance the needs and rights of the parties in the crucible of a case."
"An EDD special master adept at understanding the feasibility, complexity, impact and cost of identifying, processing, producing and using the panoply of data encountered in modern life (from the contents of a thumb drive to large enterprise information systems and cloud providers) can help everyone move forward in a sensible, cost-effective and (at times) creative fashion," explained Ball, a longtime member of LTN's Editorial Advisory Board and the LegalTech advisory board.
Exact duties can vary by the assignment. "Sometimes I just have to ask the right questions of the right people, and the best path is obvious to all. Other times, I have to gather, resurrect and analyze great volumes of data. Still other times, I have to play the role of arbiter with a big stick, getting one or both sides past the posturing or dissembling about ESI and back to the merits of the case," Ball said. "A typical engagement requires three to six months to complete, but some matters take just a few days from start to finish. A rare few run for the life of the case, but even these tend to be central to the matter only for a few months, at most. The goal is to get in, fix things and get out, not glom on."
Minnesota consultant George Socha, also a member of LTN's board, cautions that it's important for parties to understand the distinction between special masters and "neutral experts" when they are hiring. "Those are different tasks, covered, at least in the federal system, by different rules," said Socha who has done expert witness work. "Apparently, special master has more caché, because I never encounter someone in a special master role who claims to be a neutral expert," says Socha.
What do special masters cost? Ball charges for time and expenses. His rate is $500/hour -- with a 10 hour minimum. "I've never done a flat fee, but I'd look at whatever the parties and the court could agree upon and work with it, if I can." Work can be done faster when the parties have "useful, reliable metrics that area brought forward quickly."
"Working directly with technical personnel on both sides -- getting the geeks together -- really helps. You posture. You pay," warns Ball. On the other hand, it's exhilarating when you find the "easy, low cost resolution that was staring everyone in the face. Boy, howdy, I love when that happens."
But serving as a special master is not for amateurs, he cautions. "If you don't have technical insight commensurate with your legal experience, you have no business serving as an EDD special master," he asserts. "That's not a view popular with some who offer their services but have only rudimentary experience or training. But this isn't just mediation. You can't just split the baby and get a just or efficient outcome. You've got to get it right, down to the byte, if necessary," says Ball. "Just because two lawyers agree they can fly doesn't mean you should let them head to the roof."
Monica Bay is editor-in-chief of Law Technology News magazine and a member of the California bar. Send e-mail.
Subscribe to Law Technology News
