Part 1 of 2: The Need for a Special Master
Courts often struggle to manage discovery when there are only two parties in a lawsuit. When confronted with a class or multiple classes of plaintiffs or defendants, 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 to power through discovery and e-discovery issues. A Special Master can lower the cost to the parties, reduce the burden on the court, and enable the parties to focus on the legal and factual issues actually driving the case, rather than sidetracked by the necessity of managing discovery disputes.
In any litigation, but particularly in class actions requiring nationwide searches through hundreds of custodial sites, attorneys confront the very real and risky scenario that the client (or clients) might forget to disclose a particular critical data source, or that a critical data source, though disclosed, slip through the necessarily diffuse production process. At its worst, such an event may be instrumental in costing the attorney the case itself. See, e.g., Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). But even at its best, such an event will reduce the personal credibility that attorney has painstakingly developed with the court and with the client. Thus, counsel should exert an effort to demonstrate that he or she has taken appropriate and reasonable steps in discovery, as the cost of failing to do so is quite painful. One concrete step demonstrating that counsel (and his or her client) is committed to participating in discovery in good faith is to appoint a Special Master to oversee the discovery process in a neutral manner. The additional oversight provided by a Special Master also helps ensure fewer mistakes in discovery, and that those mistakes are identified and resolved sooner.
As the stakes are so high in class-action litigation, most issues, no matter how minute, are often bitterly contested, with expensive world-class experts on both sides issuing opinions over the smallest details. The e-discovery process, however, is one area where agreement and compromise to mutual advantage can be reached between counsel. Compromise is possible because the facts regarding e-discovery matters are often undisputed: binary 1s and 0s simply do not lie: either the data was deleted or it was not; either the court allowed the parties to encrypt the data or it did not; either a search costs a certain amount or it does not; either a search term exists in the dataset or it does not. Electronic discovery, for the most part, is a binary logic operation and not subject to the factual vagaries of disputed wind speeds, weight levels, or pre-existing conditions.
** This is the first part in a two-part series which comprise an abridged version of the article “Dead on Arrival: E-Discovery and Class Actions,” written by Daniel Garrie and published in the Los Angeles Daily Journal. To request a PDF of the complete article, please contact Law & Forensics.