To many litigators, federal court eDiscovery compliance can be like navigating a minefield, filled with the proverbial "traps for the unwary." Even those who follow the best practices can sometimes find themselves in discovery disputes concerning the preservation and production of electronically stored information ("ESI"). Indeed, a fair amount of eDiscovery disputes arises out of the client's failure to preserve evidence long before ever stepping foot in the lawyer's office.
Instead of bringing eDiscovery disputes before the judge (what judge likes to hear discovery motions?), another option is to have an eDiscovery dispute decided by a Special Master under Federal Rule of Civil Procedure 53. A Special Master is usually an attorney with particular expertise in a relevant area of law, appointed to perform certain duties and make proposed findings to the court. Rule 53 allows the parties to consent to the appointment of a Special Master or, under exceptional circumstances, the judge may appoint a Special Master without the parties' consent. In large, complex cases which tend to be more prone to eDiscovery disputes, it may be a good idea for the parties to stipulate to the appointment of a Special Master at the Rule 26(f) conference stage, because there may be reluctance down the road by a party seeking to compel discovery (or impose sanctions) to consent to having the dispute heard by anyone other than the judge assigned to the case.
There is a financial cost associated with the appointment of a Special Master, whose fees are usually split 50/50 between the parties. But often there is a greater financial cost associated with the drafting of eDiscovery motions and lengthy legal briefs that can far exceed the cost of a Special Master's fees. Instead of the traditional back and forth filing of motions and memoranda, waiting until the hearing date, appearing and arguing formal motions in court, a Special Master can be more cost effective by resolving a dispute through a series of informal conferences, sometimes even in the role of a mediator. In the unfortunate situation where the parties simply cannot agree, the Special Master will make findings of fact and conclusions of law and issue a report and recommendation to the judge for final determination.
The appointment of Special Masters in eDiscovery matters is nothing new in the Eastern District of Virginia. For example, a Special Master was appointed in the landmark case, DuPont v. Kolon Industries. The federal court in the Western District of Pennsylvania has taken the issue of Special Masters in eDiscovery a step further by instituting a pilot program to certify attorneys who have significant litigation experience, particularly with electronic discovery, as well as mediation training and experience in alternative dispute resolution ("ADR"). That court now has a list of approved "Electronic Discovery Special Masters" from which the litigants can choose, knowing that the person they select has met the court's standards of both proficiency and ability. The program has been shown to be successful and is a model that other federal districts (and state courts) would do well to consider.