National Business Institute

How to Use Discovery Special Masters, Forensic Neutrals and Technical Special Masters

June 16, 2020

By Daniel B. Garrie and Peggy Leen

How to Use Discovery Special MastersDisputes are becoming increasingly complex. The average civil litigation in federal courts takes upwards of 24 months to resolve on the merits.2 Thus, the bench and bar are increasingly looking to alternative processes, such as the appointment of special masters or referees, to reduce time and cost. While litigants and their counsel may be reluctant to suggest the appointment of a special master due to concerns over delays and the additional expense, these judicial adjuncts can be effective in reducing both the cost and time required to resolve a litigation, as well as providing the expertise necessary to keep a case moving forward.

In many jurisdictions, the most common complaint about the judicial system is the delay associated with moving cases forward. Lawyers and their clients need decisions, even adverse ones, to make strategic decisions. Crowded dockets, the volume of pending motions and the constitutional and statutory requirements to give priority to criminal cases are responsible for significant delays in civil cases. In the appropriate case, appointment of a special master or forensic specialist can expedite resolution.

Further, there is a wide disparity in the technical proficiency of judges, which can cause significant delays and additional expense litigating cases involving electronically stored information and other forensic disputes. Some judges are technically proficient and can comprehend and address these types of disputes. State and federal judges are contributing to a growing body of law deciding and guiding a myriad of recurring issues. However, virtually every lawyer has come across a judge who lacks the technical expertise to fully comprehend a dispute, let alone decide it. A lawyer with specialized expertise or a forensic specialist with knowledge of the judicial system would be better equipped to identify and resolve forensic issues in a timely and cost-effective manner…

Discovery special masters work at the direction of the courts across all facets of the discovery process. They are the most common and widely used type of special master. Discovery special masters can be used in banking, bankruptcy, corporate dispute, class action or product liability cases, among others.

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