This is the fifth column in a series addressing the challenges and opportunities presented by litigating in forums with no e-discovery rules. Read parts one, two, three and four. This column discusses some of the considerations that may prompt your company’s trial counsel to propose a special master for e-discovery disputes.
A judge lacking e-discovery experience, particularly in a forum with no local e-discovery rules or precedents, can be a difficult wildcard for both plaintiff and defendant. When the parties lack any reliable benchmarks to predict how the court will resolve e-discovery disputes, this uncertainty invites litigiousness, delays resolution and increases expense to both sides. One way to address this issue is by a stipulation at the outset of the case appointing an expert in e-discovery as a special master.
Another reason that parties often fail to take advantage of special masters is the perception by one party that appointing a special master will be a tactical disadvantage. To avoid this issue, the question of appointing a special master should be raised at the earliest possible point in the litigation, before the e-discovery battle lines have crystalized. Once both sides have formulated their e-discovery strategy, it is probably too late for the parties to reach agreement on appointing a special master because gamesmanship—or the perception of gamesmanship—will impede any consensus.
Special masters have to be paid, and unless the parties reach agreement on payment of the special master’s fees, many courts will be reluctant to impose this burden over the objection of one party. Although the easiest agreement to reach regarding payment of the special master’s fees may be an equal 50/50 split, the benefit of alternative arrangements should be considered. For example, a stipulation that requires the non-prevailing party on a discovery dispute to pay the special master's fees relating to that discovery issue may provide a useful incentive to both sides to consensually resolve their discovery disputes.