[Editor’s Note: Thank you to Hon. James (Jay) Francis IV for this article originally published on the JAMS Channel on JD Supra on May 9, 2023]
The Electronic Discovery Reference Model (EDRM), “a community of e-discovery and legal professionals who create practical resources to improve e-discovery and information governance,” has published a bench book for judges and attorneys titled Using Special Masters and Discovery Mediators to Avoid and Resolve Discovery Disputes. This valuable resource highlights the role of special masters in discovery, especially e-discovery. Because the value of court-appointed neutrals extends well beyond resolution of discovery disputes, the EDRM bench book is a useful springboard for considering the broader utilization of special masters.
The EDRM Bench Book
The EDRM bench book identifies a variety of discovery-related functions that special masters can carry out, particularly in complex cases with a substantial dose of electronic discovery. Special masters can:
- identify discovery needs and suggest reasonable timetables;
- create boundaries for data preservation;
- develop narrowly focused and proportional requests;
- craft collection protocols, including sampling and search techniques;
- evaluate options for leveraging technology to search, cull and review responsive discovery;
- evaluate alternative strategies for protecting confidential information, privileged material and work product;
- agree on a process for further resolving discovery disputes; and
- determine forms of production.
Many, if not all, functions of a special master can be performed by the judge. Nevertheless, there are numerous advantages to shifting some responsibilities to a court-appointed neutral.
Hon. James (Jay) Francis IV
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