Federal Bar
E-Discovery and Class Actions: Limiting Discovery Disputes with Special Masters
September, 2014
By Daniel B. Garrie & Tarique N. Collins
Class actions are often among the most explosive, costly, and challenging lawsuits faced by lawyers, courts, and litigants. This is certainly true when it comes to discovery and eDiscovery issues. Managing eDiscovery is a challenge when only two parties are involved. Confronted with a class or multiple classes of plaintiffs or defendants—ranging in numbers from tens to tens of thousands— constructing a cogent and competent discovery strategy becomes a significant challenge. When faced with such cases, courts and party attorneys should consider appointing a special master, a court-sanctioned referee of sorts, to power through discovery and eDiscovery issues. The court’s power to appoint a special master stems from Rule 53 of the Federal Rules of Civil Procedure. A special master can assist in reducing the discovery burdens on all parties by working to lower costs, assisting with cost allocation, and aiding the court to police and address discovery abuses. The parties can, therefore, focus on the legal and factual issues actually driving a case, rather than become sidetracked by discovery disputes. To be sure, the appointment of a special master alleviates the burdens of electronic discovery in very specific ways.
First, the special master provides expert oversight that ensures that fewer mistakes are made in discovery and that any mistakes that do occur are identified and resolved earlier in the process. In any litigation, but particularly in class actions requiring nationwide searches of hundreds of custodial sites, attorneys confront the very real and risky scenario that the client(s) might forget to disclose a particularly critical data source or that a critical data source, though disclosed, may slip through the necessarily diffuse production process. At its worst, such an event may be instrumental in costing the attorney the case.1 Even in a best-case scenario, however, such an event will reduce the personal credibility the attorney has painstakingly developed with the court and client. So both parties should ensure that they have taken all appropriate and reasonable steps in discovery as the consequences of failing to do so can be quite painful. By agreeing to the appointment of a special master to oversee the discovery process in a neutral manner, litigants demonstrate that they are committed to participating in discovery in good faith.
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