Succeeding with a Special Master

by Martin Quinn

Imagine you're representing the defendant in a complex class action. The plaintiffs have demanded millions of electronically stored documents - 25,000 of which you consider to be privileged. Believing the plaintiffs have tampered with evidence, you request access to their servers. You and opposing counsel are unable to agree on much of anything, including email search protocols, and the scope of what electronically stored information (ESI) each side must preserve. It may be time for the court to appoint a special master.

Special masters often blend mediation techniques with case-management skills, technical expertise, and dispute adjudication to guide the parties and their counsel through e-discovery. The idea is to help both sides formulate a practical plan that is proportional to the case, while insulating the judge from too many gnarly problems involving e-discovery.

Here are ten tips to help you work effectively with an e-discovery special master.

1. Know Your Client's Systems. If you don't already know, it's time to learn whether your client's ESI is centralized or dispersed, how to access it, how archiving is managed, and so forth. Lead counsel should meet in person and with key in-house legal and technology personnel: You don't want to explain to a judge why you filed an inaccurate declaration based on third-hand technical information given to you by an assistant general counsel.

2. Develop a Preservation Plan. If the client doesn't have standard procedures in place for preserving ESI during litigation, quickly develop a plan that won't hamstring your client's business. (Remember: Preserving ESI may be more expensive and disruptive than producing it.) At your first meeting, give the master your plan to show that you and your client are framing preservation obligations that are proportionate to the case.

3. Be Reasonable. Expect to compromise. ESI discovery is feasible only if counsel cooperate. You can't ask for everything, code everything, or review everything for privilege. Trim the fat off your requests, but be sure to get the client's buy-in to your approach in writing. Update as necessary.

4. Meet Early. As soon as possible, convene an in-person meeting with the other side. Bring your technical consultant and representatives from your firm and from your client who know what requested information is electronic and where it resides; how the ESI will be preserved; methods for privilege review; etc. Be candid and demand candor from the other side - or get the master to help.

5. Give the Court a Plan, Not a Problem. Present a joint plan to the master for court approval, covering all of the ESI points on which the two sides have agreed. Then argue the few remaining disputes to the master. If collaboration fails, present your own plan: Don't expect the master to assemble a cohesive ESI approach from the bits and pieces you and opposing counsel fling at the bench.

6. Work in Stages. Masters want counsel to start with easily accessed ESI, drilling down into backup tapes and archive retrievals only when necessary. Propose sensible limits for how far back in time to search email and what search terms to use. But also be prepared to present the master with a search protocol for sampling a small percentage of email, should additional discovery be required.

7. Frame Specific Requests. The quickest way to infuriate the special master is to request a mountain of ESI, expecting him or her to trim the request to the molehill you actually need. Forget phrases like "any and all," and instead frame specific and feasible requests for particular documents or narrow categories of ESI.

8. Respond Specifically and Candidly. Boilerplate objections (such as calling every request "vague and ambiguous") really irritate a master. Tell the other side exactly what you have and will produce. Draft any objections to respond specifically to each request - state what you don't have, or why you have something but can't reasonably produce it.

9. Use the Privilege Helpers. Reviewing ESI for privilege is more labor-intensive and subject to error than reviewing paper documents. Because document-by-document review is rarely feasible or accurate, rely on the tools that court rules and case law have created to simplify the process. Use the safe harbors of Federal Rule of Evidence 502, and become familiar with "clawback" agreements for incidents of inadvertent disclosure.

10. Be Specific. When you move to compel for "good cause," tell the master in real-world terms how the ESI you're requesting will prepare the case for settlement negotiations or trial. When opposing a motion, explain specifically why production would cause an undue hardship, again showing the ESI's impact - or lack thereof - on settlement or trial.

Martin Quinn, a full-time mediator and JAMS panelist since 1995, was a trial lawyer for more than 25 years. He specializes in resolving business and complex tort disputes and frequently serves as a special master in federal and California courts.

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