The U.S. District Court for the Western District of Pennsylvania established its E-Discovery Special Master Program in 2010, and to date, 52 lawyers have been qualified and trained to serve as EDSMs. It may surprise some people that a program where parties cover the costs of the special master usually results in substantial cost savings to those parties. Indeed, in other jurisdictions we have heard judges use the threat of appointing a special master as a tool to force parties to cooperate. But the reaction to the program has been very positive: Observed U.S. District Court Judge Nora Barry Fischer, who has been instrumental in managing the Western District program, “the parties and counsel who have used special masters are always happy they did.”
ADVANTAGES
Among the advantages of appointing an EDSM is having someone knowledgeable about electronic data discovery issues available to quickly and efficiently resolve issues and disputes. This avoids delays and higher costs to both sides of having to resort to formal motions practice. Other advantages include:
• The ability to rely on a single EDD expert. Parties do not need to hire experts and then engage in adversary negotiations or proceedings.
• The potential to have discovery disputes resolved by someone other than the ultimate finder of fact. For example, this can help reduce concerns about “in camera” review of documents where there may be disputed privilege claims.
• The neutral can stand in the shoes of litigators, but also has specialized EDD knowledge and mediation training. That can lead to practical resolutions that parties may not have considered or adopted on their own.
• Guidance about technology tools, vendors, other resources, and alternative options that parties and counsel who do not focus on EDD might not know.
• Depending on the preference of the court and the parties, the EDSM can be appointed to mediate only or, as has been more common, to mediate first—but then be prepared to issue a "Report and Recommendation to the Court" (subject to the parties’ right to file exceptions) re: any issue where an agreed resolution is not achieved. Likewise, the EDSM may be appointed to address only a particular issue identified by the court or parties, or may be given broader authority to resolve whatever EDD or general discovery issues may arise.
FOUR CASE STUDIES
Here are a few examples of how the Pennsylvania program has worked in practice, each involving a different judge.
Case 1: Redaction and production of 1.2 million documents in two months. In a matter involving bankruptcy courts in two jurisdictions, both parties needed to arrange the redactions of personally identifiable information (such as social security numbers) and other sensitive electronically stored information from more than 1.2 million documents to be produced to a third party—in two months or less. To accomplish this manually would require 80+ reviewers working 40 hours per week at an estimated cost of more than $1 million. Instead, the EDSM—attorney Karl Schieneman, president of Review Less—used a visual clustering tool that accomplished the task on time, with 11 reviewers, for under $200,000.
Case 2: Reducing costs of EDD in a criminal case. A criminal defendant charged with stealing company funds claimed that documents in the possession of the alleged victim, his former employer, would exonerate him. The judge ordered the defendant to cover the cost of the discovery, but when the employer estimated a cost of more than $225,000 for the originally-requested volume—more than 1 terabyte—the defendant claimed that was excessive. The court appointed an EDSM to assist in analyzing the costs and alternatives. The EDSM reached a mediated resolution, by significantly narrowing the EDD requested, and allowing searches by the company’s IT professional, with a release of any liability—rather than requiring an outside vendor. The R&R recommended about $22,000 in reimbursable costs, inclusive of an hourly rate for the IT professional. The cost of the EDD was cut by more than 90%, a savings of more than $200,000. The employer sought about $19,000 in additional costs but the court rejected as not reimbursable. The final cost to the parties of the EDSM time was less than $7,000.
Case 3: Private plaintiffs sue municipality. Private plaintiffs sued a municipality, its chief of police and other officials, alleging that the police violated the civil rights of demonstrators during G-20 summit. The plaintiffs alleged that defendants had failed to comply with reasonable discovery requests and should be sanctioned and compelled to comply. After attempts to negotiate failed, the court appointed an EDSM, who was able to mediate a narrowed scope of discovery—and plaintiffs agreed to drop the sanctions request upon compliance by defendants. The discovery dispute was resolved in one afternoon, and residual issues were addressed in an undisputed R&R. Total elapsed time from appointment of the EDSM to filing of the R&R was one month, the cost was less than $1,750 per side and the case proceeded on schedule.
Case 4: Facilitating discovery in a complex case. A high-stakes patent litigation matter had hundreds of millions of dollars on the line, and involved big firm lawyers on both coasts, and a host of discovery issues. The appointment empowered the EDSM to address any discovery disputes as they arose. Some were EDD-related but others were more general disputes, such as did the defendant conduct a broad enough search for responsive documents and did the plaintiff spoliate evidence?
