Nearly 95 years ago, the Supreme Court remarked on the courts’ “inherent power to provide themselves with appropriate instruments required for the performance of their duties.” 1In re Peterson, 253 U.S. 300, 312 (1920). Among instruments recently pulled from the toolbox for examination in these pages are court-appointed experts under Fed. R. Civ. P. 706 2See N. Lloyd, Courts’ Renewed Interest in Appointing Experts for Certain Complex Cases, Bloomberg BNA, Expert Evidence Report, 13 EXER 436, 8/19/2013. and court-appointed technical advisors. 3See N. Lloyd, Schooling the Judge: Using Technical Advisors for Complex Cases, Bloomberg BNA, Expert Evidence Report, 13 EXER 647, 12/23/13 (“Lloyd, Technical Advisors”). Another instrument is the special master, considered here in light of the courts’ experience following the substantial revisions to Fed. R. Civ. P. 53 in 2003. While it remains true “that the appointment of a master must be the exception and not the rule,” 4Advisory Committee Notes, 2003 Amendments to Fed. R. Civ. P. 53 (“Advisory Committee Notes”), Introductory Comments. masters can in appropriate cases save court and party resources during the pre-trial, trial, and post-trial phases. And that may be particularly true in the ESI era, given the continued logistical and financial burdens imposed on courts and litigants.
Foundational Considerations
For more than 100 years, the federal rules have explicitly recognized the courts’ power to appoint special masters as advisors. 5See Equity Rules of 1912. But even before formal codification in the Equity Rules of 1912 (and later, in 1938, in Fed. R. Civ. P. 53), the Supreme Court stated, “it has always been within the power of a court of chancery, with the consent of parties,” to refer proceedings to a special master. 6Kimberly v. Arms, 129 U.S. 512, 524-25 (1889). See also In re Peterson, 253 U.S. 300, 312 (1920) (courts’ power “includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause”).
Indeed, more than 200 years ago, Chief Justice Marshall recognized the power of courts of equity to appoint “agents or officers of the court” who can “prepare materials on which a decree may be made.” 7Field v. Holland, 10 U.S. 8, 21 (1810). Of course, the relief afforded by equity has always remained the court’s responsibility, “and all information presented to guide [the court’s] action, whether obtained through masters’ reports or findings of a jury, is merely advisory.” 8 Basey v. Gallagher, 87 U.S. 670, 680 (1874).
As originally drafted, Rule 53 “focused primarily on special masters who perform trial functions.” 9Advisory Committee Notes, Introductory Comments. Twenty years later, the Supreme Court sharply curtailed using special masters for trials in La Buy v. Howes Leather Co. 10352 U.S. 249, 259 (1957). La Buy’s aftershocks continue to be felt more than 50 years later (even after the 2003 rule revisions), making it worth a brief detour.
La Buy v. Howes Leather Co.
La Buy was an antitrust case in which the trial judge appointed a special master for trial, over both parties’ objections, reasoning that the case was complex and likely to be time consuming. The Seventh Circuit took the unprecedented step of issuing a writ of mandamus, directing the judge to hear the case without a special master. 11Id. at 258 (noting that the Seventh Circuit had repeatedly warned district judges beginning in 1938 against using special masters for trials in complex cases before issuing a writ of mandamus in 1955). The Supreme Court granted review and affirmed, agreeing not only that mandamus was an appropriate procedural remedy, but also on the merits.
Specifically, the Court held that Rule 53 required an “exceptional” circumstance to appoint a special master, and each of the district judge’s proffered bases—calendar congestion, case complexity, and anticipated trial length—was insufficient. 12Id. at 258-59. “[C]ongestion in itself is not such an exceptional circumstance,” “[n]or does [the trial court’s] claim of the great length of time these trials will require offer exceptional grounds.” 13Id. at 259. Moreover, “most litigation in the antitrust field is complex. It does not follow that antitrust litigants are not entitled to a trial before a court. On the contrary, we believe that this is an impelling reason for trial before a regular, experienced trial judge rather than before a temporary substitute appointed on an ad hoc basis and ordinarily not experienced in judicial work.” 14Id. See also Lloyd, Technical Advisors (noting the criticism of the district court in the United Shoe antitrust litigation for appointing an economist as a technical advisor on whose ex parte report the judge relied heavily in drafting his opinion).
The main exception—in 1957 as in 1810—concerned a post-judgment accounting that “would be necessary in the event the plaintiffs prevailed.” 15Id. Here, the Court
agree[d] that the detailed accounting required in order to determine the damages suffered by each plaintiff might be referred to a master after the court has determined the over-all liability of defendants, provided the circumstances indicate that the use of the court’s time is not warranted in receiving the proof and making the tabulation. 16Id. See also Peterson, 253 U.S. at 313 (“where accounts are complex and intricate, or the documents and other evidence voluminous, or where extensive computations are to be made, it is the better practice to refer the matter to a special master or commissioner than for the judge to undertake to perform the task himself”).
For many reasons, district judges dislike mandamus. “As we have recognized before, mandamus actions … have the unfortunate consequence of making the [district court] judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants [appearing] before him in the underlying case.” 17Kerr v. U.S. District Court for the Northern District of California, 426 U.S. 394, 402 (1976) (brackets by the court; internal quotations and citations omitted). Certainly they do not need repeated reminding. Indeed, in the wake of La Buy, judges found Rule 53’s “exceptional” circumstance hurdle difficult to clear, particularly when the parties refused to consent. 18The Honorable Shira A. Scheindlin, Jonathan M. Redgrave, Special Masters and E-Discovery: The Intersection of Two Recent Revisions to the Federal Rules of Civil Procedure, 30 Cardozo L. Rev. 347, 349 (2008) (“Scheindlin and Redgrave”).
The 2003 Amendments
Nonetheless, as the years passed after La Buy, district judges did not always hear the call of Special Masters as a siren song leading to inevitable disaster on appeal. Indeed, part of the special masters’ attraction has always been the flexibility with which a court of equity could deploy them. 19Advisory Committee Notes, Rule 53(f) (noting “the wide array of tasks that may be assigned to a pretrial master”).
In 2003, the Rules Committee recognized both that “[t]he appointment of special masters to participate in pretrial proceedings has developed extensively over the last two decades as some district courts have felt the need for additional help in managing complex litigation,” and that the practice of doing so was “not well regulated by the present Rule 53, which focuses on masters as trial participants.” 20Advisory Committee Notes, Pretrial and Post-Trial Masters.
And while the 2003 amendments did not overrule La Buy, Rule 53 relaxed somewhat the interpretation of “exceptional condition” to provide greater flexibility. Reflecting this greater flexibility, Special Masters in recent years have been appointed to assist in supervising complex discovery matters, conducting settlement negotiations, implementing and enforcing post-judgment orders and decrees, and administering and distributing proceeds when many claimants were permitted to share in a limited settlement fund. 21Scheindlin and Redgrave, 30 Cardozo L. Rev. at 349; see also Mark A. Fellows & Roger S. Haydock, Federal Court Special Masters: A Vital Resource in the Era of Complex Litigation, 31 Wm. Mitchell L. Rev. 1269, 1270 (2005).
Discovery Masters Post-La Buy
In the post-La Buy, pre-ESI era, district courts appointed special masters for a variety of complex discovery matters, and the Courts of Appeals rejected challenges to those appointments. 22See, e.g., United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F. 3d 963, 967 (9th Cir. 1999) (referring all pretrial matters to special master); see also In re U.S. Dep’t of Def., 848 F.2d 232, 236-37 (D.C. Cir. 1988) (affirming appointment; practical difficulties of reviewing documents amounted to an exceptional condition warranting the appointment of a master); Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973) (“[I]t is within the discretion of a trial court to designate a special master to examine documents …. This special master would not act as an advocate; he would, however, assist … by assuming much of the burden of examining and evaluating voluminous documents that currently falls on the trial judge.”); In re Ampicillin Antitrust Litig., 81 F.R.D. 377, 380 (D.D.C. 1978) (adopting, in part, recommendations of special master appointed to review complicated privilege claims involving more than 700 documents). To be sure, courts have used Special Masters for discovery disputes since at least 1917. See Pressed Steel Car Co. v. Union Pacific R.R. Co., 241 F. 964, 967 (S.D.N.Y. 1917) (most convenient way to conduct discovery would be for the parties to agree upon a master). A notable example was Minnesota’s lawsuit against the country’s largest tobacco companies in the late 1990s. Literally millions of pages of documents were produced in the litigation. 23See http://www.tobaccoarchives.com/info.html (which has more than 26 million pages of documents produced in the litigation).
The court appointed a special master to consider privilege claims, finding that “[t]he extraordinary number of documents which have been designated as privileged in this case makes it impossible to conduct an in camera inspection of each document individually to determine whether it is so closely related to Plaintiffs’ prima facie showing of crime-fraud that any claim of privilege is lost”; directing the defendants to “categorize the documents subject to the claims of privilege”; and thereafter directing the special master to make a determination of privilege concerning each category. 24See State of Minnesota and Blue Cross and Blue Shield of Minnesota v. Philip Morris, C1-94-8565, order concerning objections to the special master’s Sept. 10, 1997, report at 8, available at:http://www.library.ucsf.edu/sites/all/files/ucsf_assets/0105519disclose.pdf. The special master rejected privilege claims concerning several categories, the trial judge adopted his findings, and the defendants unsuccessfully sought review (including to the United States Supreme Court), before the documents were released.
ESI Masters
As discovery has become increasingly paperless, courts have tapped special masters to help resolve disputes involving electronically stored information (“ESI”), to establish procedures and schedules, to monitor document production, to review privileged claims, and even to attend depositions and discovery conferences. 25See Scheindlin and Redgrave, 30 Cardozo L. Rev. at 351. See Bray & Gillespie Mgt. v. Lexington Ins. Co., No. 6:07-cv-222 (M.D. Fla. Jan. 9, 2009) (adopting in part special master’s recommendation). In determining whether ESI Masters are appropriate, courts have considered the anticipated volume of material, the scientific and technical nature of the information subject to discovery, and the complexity of the underlying dispute. 26Id. Of course, some district judges routinely handle eDiscovery matters themselves. See Orbit One Commc’ns, Inc. v. Numerex Corp
., 271 F.R.D., 429 (S.D.N.Y. 2010).
For example, in Bray & Gillespie, the court appointed a special master for discovery matters. In response to a motion to compel, the magistrate judge ordered the plaintiff to produce ESI on an expedited basis, which the plaintiff did without conducting a privilege review. The plaintiff later requested that any privileged material disclosed in response to the order be treated as inadvertently produced, while the defendant requested that any privilege claims be deemed waived. The special master recommended that neither a blanket finding of inadvertent disclosure or waiver was appropriate. He further recommended that if the only time the plaintiff produced privileged material was in response to the order requiring expedited production of ESI, then that material should be deemed inadvertently produced. The magistrate judge “agree[d] in principle with the narrow recommendation of the Special Master.” 27Bray & Gillespie. But see Accounting Principals, Inc. v. Solomon Edwards Group, 2010 BL 186718 (D. Kan. Aug. 12, 2010) (rejecting defendant’s request for a special master to “oversee a cost-effective manner of managing the discovery of [ESI] … on the grounds that nothing in this case is of a specialized or highly technical nature”).
Conclusion
In 2003, the Rules Committee acknowledged that it may be appropriate to appoint a special master “to address matters that blur the divide between pretrial and trial functions,” including “matters that could be addressed by a judge, such as reviewing documents for privilege,” or assisting the court in carrying out its responsibility “to interpret patent claims as a matter of law . . . by appointing a master who has expert knowledge of the field in which the patent operates.” 28Advisory Committee Notes, Pretrial and Post-Trial Masters.
When parties consent, such appointments present few problems and may indeed expedite the resolution of litigation. 29See Lacks Indus. v. McKechnie Vehicle Components USA, 322 F.3d 1335, 1341 (Fed. Cir. 2003) (noting the parties’ agreement in patent case to submit certain issues concerning infringement and validity to a special master). Of course, the appointment of a special master is no guarantee of affirmance. See id. at 1351. The court, however, need not (and in some instances, will not) await the parties’ agreement to deploy the instrument it deems best suited for the job. Given their need to cope with “ever-increasing caseloads,” and to address “difficult issues that require disproportionate judicial attention and expertise not otherwise available to the court,” 30Scheindlin and Redgrave, 30 Cardozo L. Rev. at 349. district judges may find Special Masters an increasingly attractive option.
