LawyersUSA

The increased use of electronic discovery has resulted in a new set of practitioners: e-discovery special masters.

A special master is a parajudicial officer appointed to help a court with its proceedings, and may perform functions such as taking testimony or advising the court as a neutral expert. Federal Rule of Civil Procedure 53(a)(1)(C) authorizes a broad spectrum of possible jobs, allowing special masters to "address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district."

"Essentially, you represent the judge and the court as an independent in evaluating technological disputes and electronic discovery issues," explained Peter S. Vogel, Chair of the Electronic Discovery and Document Retention Team and co-Chair of the Internet and Computer Technology Practice Group at Gardere Wynne Sewell in Dallas.

Vogel, a partner at the firm, has worked on more than 20 cases with some form of an e-discovery special master.

The role varies, explained Shira Sheindlin, a U.S. District Court Judge in the Southern District of New York and the author of several seminal opinions on e-discovery, including Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004).

Courts can appoint an electronic discovery special master "for a narrow dispute, such as a privilege review, or a broader task like supervising all discovery," she said.

Special e-discovery masters have become prevalent because over the last few years, "the level of technical detail simply outgrew what judges and counsel could comprehend," explained Craig Ball, a trial lawyer and technologist in Austin, Texas who has served as a special master in approximately two dozen cases.

"When neither the attorneys nor the court felt able to ask the right questions or understand the answers, that created the need for a technical special master," he said.

Appointing a special master

Kenneth J. Withers is the director of judicial education and content at The Sedona Conference, a non-profit organization in Phoenix, Ariz. that works to advance law and policy in areas like electronic discovery. He says that federal practitioners generally agree that the rules pertaining to electronic discovery are often too cumbersome and costly to follow.

When Rule 53 was modified a few years ago, recognizing that special masters can help ease strained federal dockets, a new practice was born.

"In the past, the use of special masters was restricted to cases that involved tremendous amounts of scientific evidence or rulings on computations of damages," Withers explained. "Things that did not necessarily involve legal expertise, but scientific or accounting training." (One example is the practice of the U.S. Supreme Court to appoint a special master in original cases filed by states disputing land or water rights.)

Under Rule 53, courts are encouraged to consult the parties in the process of appointment, which can take a variety of forms, Judge Scheindlin explained.

"Some courts will request nominations, having each party suggest three names," she said. "Or the court can provide a list of possibilities and ask the parties if they have any objections to those proposed."

Once an individual is selected, the court then must set out an order of appointment, which details in great specificity what the role of the special master will be in the case.

Judge Scheindlin noted that the parties can also approach the court about using a special master.

"If the court hasn't thought of it and the parties think it would be helpful, they could politely suggest that they need outside help and technical expertise," she said.

What do they do?

Rule 53 allows e-discovery experts to "shepherd litigants through the discovery process on technological issues, and answer questions such as 'What is reasonably accessible? What form should the electronically stored informationbe produced in?'" Withers said.

Special masters can be especially effective in cases with a large volume of privileged documents, Withers noted. The typical case requires a judge to review arguably privileged documents in camera to determine their actual status. But what if there are tens of thousands of electronic documents to review?

The most common use of special masters occurs when a court appoints a neutral to perform a technical task, Judge Sheindlin said, such as cloning a party's hard drive or performing an on-site inspection of the materials found on a personal computer.

She noted that courts will also appoint discovery masters to mediate and facilitate Rule 26(f) conferences, to keep the parties "realistic about what needs to be preserved and produced, or what an appropriate keyword search might be."

The actual work performed can vary greatly depending on the case.

"Sometimes I am a neutral examiner who sees both sides' secret and privileged data to insure that each side is getting what it is entitled to receive without compromising their opponent's legitimate privacy and privilege issues," Ball explained.

Alternatively, he said, "I may be a neutral expert advising the court when other experts can't seem to find common ground."

On a hands-on level, that means Ball may perform a forensic examination into a party's electronically stored information, or he may help develop and implement search strategies to remedy a failed e-discovery effort.

Special masters can also provide the court with a realistic assessment of costs, Judge Scheindlin said.

If electronically stored information has been erased, or needs to be restored, the court will appoint an e-discovery neutral to determine what the cost would be to translate a back-up tape or restore information.

Vogel was involved in a case where three brothers in a family business split up. He was presented with several discs to review to determine which business correspondence was privileged as it related to which individual in the family. During the course of his work, he found that one of the discs was blank. Vogel then re-created, or "undeleted," the information for the court.

In another case, Vogel was tasked with determining whether slanderous e-mails were being sent from a specific computer system's server.

"I had to evaluate all of the e-mails in the system, which involved looking at hundreds of thousands of e-mails," he said. "That is not something a judge has the time or necessarily the training to do."

A legal eagle and a tech expert

While some tasks an e-discovery special master might take on are strictly technical, others require legal knowledge and expertise.

A special master must "speak fluent litigator and fluent geek," Ball said. "I couldn't do what I do without both extensive trial experience and the training and background that qualifies me as a certified computer forensic examiner."

A love for the subject matter doesn't hurt, either.

"I revel in learning how systems work and where data lives, and working to solve the myriad problems seen in a complex e-discovery effort," Ball said. "I get discouraged when lawyers' eyes glaze over because I'm convinced they're missing out on exciting, challenging stuff."

Cost-effective litigation fees

Some parties may hesitate to use a special master because it can seem like an added litigation expense. Parties typically split the cost, although judges have the discretion to apportion accordingly if they feel discovery abuse has occurred.

According to Withers, a special master can "tremendously streamline the process and speed things up, and also come up with solutions to problems that reduce costs. It may seem more expensive up front, but this role is going to get a case resolved faster and costs will be reduced."

And the use of e-discovery special masters will only continue to increase, he predicted.

Ball agreed. "The demand for the service outstrips the ranks of experienced, technically-adept lawyers."

Ball - who charges $500 per hour ($250 per hour for travel plus expenses) and assesses a $5,000 engagement fee credited toward the first 10 hours - said it's possible to make a living as an electronic discovery special master.

"I made more as a trial lawyer, but enjoyed it less," he told Lawyers USA. "I charge a handsome hourly rate and am fortunate to have nearly all the work I can handle."

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com