Special Masters: How To Make the Best of Both Worlds, Part V

Part Five: Incentives Through Expertise[1]

By: Merril Hirsh, James M. Rhodes and Karl Bayer

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.

The possibilities for using that expertise are as vast as the imagination that created the eDiscovery problem in the first place. For example, knowledgeable eDiscovery experts can help to resolve disputes quickly regarding discovery of ESI that one party claims is “not reasonably accessible”; balance the relative costs and benefits of collections from legacy data systems; and establish a protocol for leveraging technology-assisted review including email threading, search term filtering, or predictive coding. Such experts could also offer creative solutions to resolve disputes such as semi-automated privilege logs, categorical logs or indices, or the production of database export reports in lieu of email communications for establishing certain facts.

That was Step Two. But wait, there’s more …. Stay tuned for Part Six.

Read Part One: The Problem.

Read Part Two: Improving the Process, Not Just the Rules.

Read Part Three: What Incentives Are We Creating?

Read Part Four: How Do We Create Better Incentives?

Read Part Six: An Appellate Court Success Story.

Read Part Seven: Being the Neutral Eyes.

Read Part Eight: How Are Special Masters Perceived?

Read Part Nine: Beating the Rap.

Read Part Ten: Using Regularity to Start Beating the Rap

Read Part Eleven: The Rule Rather than the Exception

Read Part Twelve:  An Adjunct to Civil Litigation

Read Part Thirteen: Doing Disagreement as Effectively as Doing Agreement

Read Part Fourteen: Is Doesn’t Just Have To Be Construction That’s Constructive

Read Part Fifteen: Where Else Do We Bring Alternative Dispute Resolution Skills to Dispute Resolution?

[1]The authors wish to thank Alison Grounds of Troutman Sanders, LLP and its affiliate eMerge for her assistance on the technical suggestions in this post.