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Electronic Discovery & Information Governance - Tip of the Month: Special Masters and Complex E-discovery Questions

31 July 2018
Mayer Brown Newsletter

Scenario

A multinational corporation is served with an antitrust class action alleging that the corporation cooperated with other players in its industry to set prices. It soon becomes apparent that the plaintiffs' counsel has also sued all of the other players, each in the US judicial district where a major place of business is located. The cases are eventually consolidated in a single US district court that does not have robust local rules governing e-discovery. A major competitor's counsel proposes that the parties seek the appointment of a special master to handle e-discovery because the counsel fears that otherwise the plaintiffs will be essentially free to set the scope and depth of e-discovery more or less unilaterally. The general counsel requests an assessment of this suggestion.

Special Masters and Complex E-discovery Questions

In 2016, over a dozen food producers faced this dilemma when they were served with an antitrust lawsuit alleging multi-year collusion over pricing. Perhaps predictably, given the complex allegations and litany of defendants, discovery got messy quickly. Denying the defendants' motion to dismiss, the judge explained that "[t]his is not a simple case of obvious injury with obvious defendants. Rather, many dots need to be connected in context to draw a picture of conspiracy."

After a year of wrangling between the parties over discovery protocols, the judge appointed a law professor and e-discovery expert as special master to oversee technology-assisted document review. She issued a comprehensive search methodology framework to guide electronic discovery, defining both the substantive scope of discovery and an elaborate multi-state procedure to encourage "cooperation" between the parties.

But for now, the jury is out on whether court-appointed special masters such as this one help or hinder e-discovery. Certainly the trend has been toward appointing special masters. A series of changes to the Federal Rules of Civil Procedure between 2003 and 2006 have greatly facilitated their appointment. Evaluating these changes, one judge with the Southern District of New York wrote that she "firmly believe[s] that court adjuncts in this field are both necessary and desirable."

Reflecting specifically on the special master's work in the complex antitrust case involving the food producers, some have hailed it as a "terrific protocol" that "will certainly be referenced for a long time." Even so, as one mediation expert has explained, "[j]udicial officers, lawyers and clients are becoming more comfortable with e-discovery and how it's used in litigation," so these special masters may increasingly play a less meaty role in ironing out e-discovery wrinkles. If judicial officers and the parties themselves have sufficient capacity to conduct e-discovery, a special master may just add another layer of complexity and rigidity to an already contentious phase of litigation—complexity that comes at the expense of judicial discretion and authority. Some commentators also have voiced concern that the position adds gratuitous costs to litigation, costs that come at the expense of parties themselves and accrue to the benefit of a small handful of qualified repeat players. As magistrate judges hone their e-discovery expertise, they offer a compelling alternative—bringing greater impartiality, a broader scope of knowledge and a stronger working relationship with the district judge without compromising significantly on specific expertise in e-discovery protocols.

So should you move to appoint a special master in your matter?

Certainly special masters can offer greater sophistication, coordination and organization throughout the discovery phase of litigation—a particular boon in high-stakes, unwieldy cases like the ongoing food industry antitrust matter. Yet they bring increased costs, greater rigidity and potentially undesirable delegations of judicial authority. In deciding whether to move for a special master appointment, consider factors such as the number of parties and volume of documents at issue, relative comfort level of parties' counsel and judicial officers with e-discovery, your litigation budget, and the speed at which discovery must proceed to achieve your goals.

In short, special masters can be a powerful tool in a litigator's case management arsenal– but they may not be appropriate for all disputes.

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