Where Can the Special Master/Referee Make The Greatest Impact?
Special masters can make the most immediate and lasting impact with e-discovery issues. More than 90 percent of American business organizations will be involved in litigation. The discovery phase of that litigation can consume more than 50 percent of the litigation costs, and those costs may often exceed the amounts in dispute. It is, therefore, essential that discovery costs be managed effectively throughout the litigation.
E-discovery requires substantial and significant prior planning by all parties. That planning is optimally done collaboratively, and it is here that the role of the special master is most important. The special master can facilitate dialogue and agreements among the parties with respect to the critical and threshold issue of the scope of proposed e-discovery, including agreement on sources, custodians, topics, and filters.
The special master also serves to facilitate implementation by resolving search and retrieval issues, setting protocols for identifying knowledgeable witnesses, identifying locations of documents and electronically stored information(“ ESI”), and developing preservation protocols. In addition, the special master can assist in reaching agreement on the form of production (native, image, or hybrid), and in developing protective orders to protect privilege and privacy concerns. In his/her adjudicative role, the special master can be particularly effective in the area of privilege and work product that arises frequently given the massive amounts of data often associated with ESI. Thus, the special master serves substantial roles in all aspects of ediscovery from the (1) setting the scope to (2) search and preservation to (3) production and protection of privilege and privacy.
Disputes in e-discovery often require a weighing of benefits and burdens. Preservation issues, motions to compel, or other legal disputes often require a factual determination of technical issues beyond the court’s expertise. For example, the technical knowledge of the special master may be of particular significance in a case where some information may simply not be retrievable on a particular hard drive.
Thus, through the appointment of a special master, the litigation process can accomplish in days what would take many months of litigation. If the special master has the knowledge and is afforded the appropriate level of authority, he/she can be instrumental in reducing the litigation costs normally associated with issues concerning the scope or e-discovery, the form of production, and a rational approach to search and retrieval.
Timing, however, is critical in the appointment of a special master. The issues need to be addressed early and often. The subject should be addressed early because at the very outset of litigation, neither side may have begun to formulate its e-discovery strategy. Once either side does, however, it may be too late, and gamesmanship, or the perception thereof, sets in, the battle lines are crystallized, and collaborative planning is off the table. It should be addressed often because the discovery process itself evolves as a case matures. It is for that reason that the special master, familiar with the case from the outset, be available to maintain the continuity of collaboration that allows the parties to function in a process that is efficient, practical, and just.
Viggo Boserup is a Certified Electronic Discovery Specialist, a designation awarded to those who pass the rigorous examination providing an objective measure of an individual’s broad-based knowledge on the challenging topic of e-discovery. The CEDS certification program is administered by the Association of Certified E-Discovery Specialists, the preeminent international organization for e-discovery professionals worldwide.
Viggo Boserup serves as referee/special master in electronic discovery disputes involving trade secrets, intellectual property, employment, healthcare and other matters.