Special Masters: How To Make the Best of Both Worlds, Part V
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In Part Four we began to discuss solutions (not just problems), and urged that a first step in incentivizing counsel to hold down litigation costs is to have a neutral oversee the process of discovery closely enough (1) to make it in counsel’s interest to act reasonably in the first place; and (2) to rule on unreasonable demands or failures to respond to discovery quickly, so that they gain no tactical advantage.
A second step is to have a decision-maker employ not just legal expertise, or subject matter expertise, but technical case management expertise. The most obvious example is experts appropriately skilled and knowledgeable about eDiscovery. It is no secret that, in recent years, a significant driver of expense in complex litigation is the costs associated with the preservation, collection, filtering, review, and production of electronically stored information (“ESI”). Without a proactive plan for managing the volume of information needed for the efficient resolution of the dispute, eDiscovery costs can quickly spiral out of control and take the focus away from the merits of the case.
Some judges and magistrate judges have developed expertise in eDiscovery and the Advisory Committee on Federal Rules and courts have worked to develop both rules and protocols for eDiscovery. But we cannot expect every judge or magistrate judge to be an expert in technology, let alone keep up with the quick succession of technological advancements. It is difficult enough for judges and magistrate judges to keep up with the latest advance sheets.
So while it may be unrealistic to expect all judges to be technology experts, nothing in Federal Rule of Civil Procedure 53, limits the expertise of special masters, or prevents a special master from operating with experts on database management and search tools. We have some experience under Federal Rule of Evidence 706 using court-appointed expert witnesses on substantive issues. There is no reason why judges cannot make profitable use of special masters’ expertise on the technical issues that drive litigation costs.
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