“E-DISCOVERY AND THE USE OF SPECIAL MASTERS”

Presenters

HONORABLE W. ROYAL FURGESON, JR.

Senior United States District Judge

United States Court for the Northern District of Texas

1100 Commerce St.

Room 1359

Dallas, Texas 75242-1001

Ph: 214.753.8537

KARL BAYER

Dispute Resolution Expert

8911 N. Capital of Texas Hwy. Ste. 2120

Austin, Texas 78759

Ph: 512.345.8537

Website: www.karlbayer.com

E-mail: karl@karlbayer.com

Disputing Blog: www.karlbayer.com/blog

Written by

HONORABLE W. ROYAL FURGESON, JR.,

KARL BAYER

ELIZABETH L. GRAHAM

State Bar of Texas

27th

ANNUAL

LITIGATION UPDATE INSTITUTE

January 20-21, 2011

San Antonio

CHAPTER 3

ROYAL FURGESON

SENIOR UNITED STATES DISTRICT JUDGE 1100 Commerce Street, Dallas, TX 75242-1310

PH: 214-753-2355 FAX: 214-753-2356 ____________________________________________

EMPLOYMENT: • U.S. Army from 1967-69 (attained rank of Captain; served year in Vietnam). • Clerk for Honorable Halbert O. Woodward, U. S. District Judge, Lubbock, Texas, 1969-70. • Shareholder, Law Firm of Kemp, Smith, Duncan & Hammond, El Paso, Texas, 1970-94. • U. S. District Judge, Western District of Texas: El Paso Division, March 11, 1994 to March 1995; Midland Division, March 1995 to March 2003; San Antonio Division, March 2003 to November 2008. • Senior U. S. District Judge, Northern District of Texas, December 2008 to present. EDUCATION: • B.A. Degree, English, May 1964, Texas Tech University (Varsity Letter, Basketball, 1961-62; President, Student Body, 1963-64) • J.D. Degree with Honors, May 1967, University of Texas School of Law (Associate Editor, Texas Law Review) AFFILIATIONS: • Board Certified, Texas Board of Legal Specialization, Civil Trial Law, 1979-94. • Texas Bar Foundation, 1981-present. • American Law Institute, 1982-present. • American College of Trial Lawyers, 1987-present. • American Bar Foundation, 1993-present. • Philosophical Society of Texas, 2000 to present. ACTIVITIES: • El Paso County Child Welfare Board (Chair, 1977-78). • University of Texas Law Alumni Association (President, 1978-1979). • National Conference of Christians and Jews, El Paso Chapter (President 1978). • El Paso United Way (General Campaign Chair 1979 and President 1981). • El Paso Cancer Treatment Center (President 1980). • El Paso Bar Association (President 1983). • Keep El Paso Beautiful Association (President 1988). • American Board of Trial Advocates, El Paso Chapter (President 1991). • Judicial Resources Committee of the Judicial Conference of the United States (Chair 2005-2007). • Judicial Panel on Multidistrict Litigation (2008-present). RECOGNITION: • Outstanding Young Lawyer of El Paso, 1973. • Faculty Award, University of Texas Law School, November 1983. • Humanitarian Award, National Jewish Center for Immunology & Respiratory Medicine, May 1988. • Hannah G. Solomon Award, El Paso Section, National Council of Jewish Women, February 1991. • Community Service Award, University of Texas School of Law, April 1991. • Honorary Degree, Cathedral High School, El Paso, Texas, 1994. • Outstanding Jurist Award, El Paso Bar Association, May 1996. • Leon Green Award, Texas Law Review, University of Texas School of Law, 2001. • Nancy L. Garms Memorial Award, State Bar of Texas, 2003. • Spirit of Excellence Award, American Bar Association, Commission on Racial and Ethnic Diversity, 2004. • Judicial Appreciation Award, San Antonio Young Lawyers’ Association, 2004. • Jurist of the Year, Texas Chapter of the American Board of Trial Advocates, 2004. • Distinguished Alumnus, Texas Tech Alumni Association, 2007. • West Texas Legal Legend, Texas Tech University School of Law, 2008. • Standing Ovation Award, State Bar of Texas CLE, 2009.

KARL BAYER received his B.A. cum laude in electrical engineering from Rice University in 1971, an M.S. in

biomedical engineering from Massachusetts Institute of Technology in 1973 and his J.D. from The University of

Texas School of Law in 1976. He began his career as an engineer, consulting for the design of large-scale radar

tracking systems, and was a founding partner of Omnibus, a company that developed software to automate school

bus routing. Mr. Bayer then spent seven years in governmental relations positions, including as staff attorney in

Pesticides and Toxic Substances with the Environmental Protection Agency. He was legislative director for U.S.

Representative Kent Hance, administrative and legislative aide for Texas State Senator Don Adams and law clerk for

Texas Attorney General John Hill.

In the legal field, Mr. Bayer has worked as a trial lawyer, in a wide range of cases including personal injury,

business, intellectual property and land use. Mr. Bayer has been a guest lecturer in international negotiations and

alternative dispute resolution at the University of Monterrey Law School and Anahuac Law School in Mexico City.

He is a Fellow at the Center for Public Policy Dispute Resolution and a guest lecturer in alternative dispute

resolution, trial tactics, negotiation, and professional responsibility at The University of Texas School of Law. Mr.

Bayer is a member of the American Law Institute and the National Academy of Distinguished Neutrals. He is

recognized as a Super lawyer regularly by The Texas Lawyer. Mr. Bayer received the 1998 Community Peacemaker

Award from the Travis Country Dispute Resolution Center. His primary work these days is as a mediator, arbitrator

and special master.

Mr. Bayer has been a frequent CLE presenter and also writes the popular legal blog Disputing: Conversations about

Dispute Resolution. The blog just celebrated its 5th anniversary and has been cited by the Wall Street Journal and a

variety of law review articles. At Disputing, Mr. Bayer discusses articles, court cases, legislation, and news relating

to alternative dispute resolution. Disputing also features commentary from leading practitioners and scholars. You

may visit Disputing at www.karlbayer.com/blog.

E-Discovery And The Use Of Special Masters Chapter 3

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TABLE OF COTENTS

I. INTRODUCTION ................................................................................................................................................... 1

II. A SURVEY OF TEXAS LAW ............................................................................................................................... 1

III. SURVEY OF FEDERAL LAW .............................................................................................................................. 5

IV. PRACTICE TIPS .................................................................................................................................................... 8

V. CONCLUSION ..................................................................................................................................................... 11

APPENDIX A: EXEMPLAR ESI SPECIAL MASTER APPOINTMENT ORDER .................................................. 13

E-Discovery And The Use Of Special Masters Chapter 3

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“E-DISCOVERY AND THE USE OF

SPECIAL MASTERS” (Printed March 11, 2010)

I. INTRODUCTION

A special master is defined as a ―representative of

the court appointed to hear a case involving difficult or

specialized issues.‖1 Once appointed, a special master

acts as a representative of the judge, but with a more

thorough understanding of specific issues. A master

may be appointed by the court or agreed upon by the

parties for a variety of reasons. A special master may

be utilized by the United States Supreme Court to act

as a fact finder in an original jurisdiction case.2 One

may be appointed to mediate claims arising out of the

conduct of parties.3 The skills of a special master may

also be properly utilized in a highly technical case.

Increasingly, special masters are being used to reign in

the significant costs associated with electronic

discovery (e-discovery) or to mediate discovery

disputes and reduce motion practice. This can save

parties significant time and money.4

We live in a world dominated by computers.

Today, some 95% of all documents are created using

computers.5 It is estimated that more than 210 billion

emails alone are sent each day.6 The cost of producing

electronically stored information (ESI) can easily reach

hundreds of thousands of dollars in a single case.

Because of this, it is important to consider whether

utilizing the skills of a special master might be right for

your case.

1 Special Master, TheFreeDictionary.com, http://legal-

dictionary.thefreedictionary.com/Special+Master.

2 See, e.g., Karl Bayer, Supreme Court Issues Orders on

Special Master Interim Report, DISPUTING (Oct. 19, 2010),

http://www.karlbayer.com/blog/?p=11329.

3 See Karl Bayer, Special Master Appointed to Conduct

Global Mediation in Bankruptcy Case, DISPUTING (Nov. 2,

2010), http://www.karlbayer.com/blog/?p=11499.

4 See Peter S. Vogel, eDiscovery Update: Special Masters

and eMediation, DISPUTING (July 28, 2010),

http://www.karlbayer.com/blog/?p=10175.

5 CRAIG BALL, Cross-examination of the Computer

Forensics Expert, in 4 ON FORENSICS 84, 84 (2007),

http://www.craigball.com/CF4_0807.pdf.

6 See Peter S. Vogel, 210 Billion Emails Sent Each Day -It's

Time to Use eMediation or Special Masters in eDiscovery -

Webcast on February 16, 2010 (State Bar of Texas CLE),

VOGEL I.T. LAW BLOG (Jan. 27, 2010),

http://www.vogelitlawblog.com/2010/01/articles/ediscovery/

210-billion-emails-sent-each-day-its-time-to-use-

emediation-or-special-masters-in-ediscovery-webcast-on-

february-16-2010-state-bar-of-texas-cle/

There are several advantages to having a special

master appointed in your case. First, because the

master acts as a representative of the court, both

confidentiality and privilege are protected. Using a

master can expedite issues, save your client money,

provide a more transparent and less adversarial

process, and maintain goodwill with the judge in your

case.7 A special master can be costly, however, so

choosing the right master is absolutely crucial.

This paper will discuss the use of a special master

in the e-discovery context. It will provide a brief

survey of the case law in both Texas and federal courts

followed by useful practice tips and finally a sample

appointment order.

II. A SURVEY OF TEXAS LAW

Unless otherwise authorized by statute or consent

of the parties,8 the appointment of a special master in

Texas is governed by Rule 171 of the Texas Rules of

Civil Procedure.9 Adopted in 1941, Rule 171 was

patterned on Federal Rule of Civil Procedure 53 as to

both language and purpose.10

―Having adopted the

exact language of the Federal Rule, it is presumed that

it was adopted in the light of the decisions construing

it."11

The Texas Supreme Court has stated, ―Rule 171

is the exclusive authority for appointment of masters in

our state courts. . . . We therefore conclude that every

referral to a master, unless authorized by statute or

consented to by the parties, must comply with Rule

171.‖12

The rule provides the court with the authority

to appoint a special master only in ―exceptional cases‖

and ―for good cause.‖13

Rule 171 states:

RULE 171. MASTER IN CHANCERY

The court may, in exceptional cases, for good

cause appoint a master in chancery, who shall

be a citizen of this State, and not an attorney

for either party to the action, nor related to

either party, who shall perform all of the

duties required of him by the court, and shall

be under orders of the court, and have such

7 Peter S. Vogel and Allison O. Skinner, When to Use

eMediation or Special Masters in eDiscovery, Webcast on

February 16, 2010 (State Bar of Texas CLE)

8 Simpson v. Canales, 806 S.W.2d 802, 810-11 (Tex. 1991).

9 Id. at 810.

10 Id.

11 Ex parte Odom, 271 S.W.2d 796, 797 (Tex. 1954).

12 Simpson, 806 S.W.2d at 810. See also Hansen v. Sullivan,

886 S.W.2d 467, 469 (Tex. App.-Houston [1st Dist.] 1994,

orig. proceeding) (citing Simpson).

13 TEX. R. OF CIV. P. 171.

E-Discovery And The Use Of Special Masters Chapter 3

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power as the master of chancery has in a

court of equity.

The order of references to the master may

specify or limit his powers, and may direct

him to report only upon particular issues, or

to do or perform particular acts, or to receive

and report evidence only and may fix the

time and place for beginning and closing the

hearings, and for the filing of the master's

report. Subject to the limitations and

specifications stated in the order, the master

has and shall exercise the power to regulate

all proceedings in every hearing before him

and to do all acts and take all measures

necessary or proper for the efficient

performance of his duties under the order. He

may require the production before him of

evidence upon all matters embraced in the

reference, including the production of books,

papers, vouchers, documents and other

writings applicable thereto. He may rule

upon the admissibility of evidence, unless

otherwise directed by the order of reference

and has the authority to put witnesses on

oath, and may, himself, examine them, and

may call the parties to the action and examine

them upon oath. When a party so requests,

the master shall make a record of the

evidence offered and excluded in the same

manner as provided for a court sitting in the

trial of a case.

The clerk of the court shall forthwith furnish

the master with a copy of the order of

reference.

The parties may procure the attendance of

witnesses before the master by the issuance

and service of process as provided by law

and these rules.

The court may confirm, modify, correct,

reject, reverse or recommit the report, after it

is filed, as the court may deem proper and

necessary in the particular circumstances of

the case. The court shall award reasonable

compensation to such master to be taxed as

costs of suit.14

Texas courts have traditionally been reluctant to give

appointed special masters too much power. In Simpson

v. Canales, the Supreme Court of Texas refused to

allow a trial court to refer all discovery matters to a

14

Id.

special master despite that the case was much more

complicated than others on the trial court‘s docket

because ―Rule 171 permits appointment of a master

only ‗in exceptional cases, for good cause‘.‖15

The

standard,

―[C]annot be met merely by showing that a

case is complicated or time-consuming, or

that the court is busy. This does not mean

that the complexity of a case and the

demands upon the court's time cannot be

considered in deciding whether to refer a

matter to a master. But it simply does not and

cannot follow from the fact that our trial

courts are busy-as they certainly are-that they

do not have time to hear complex cases.‖16

The same court also stated, however, that a special

master appointment should not be reversed absent a

clear abuse of discretion.17 In Texas, if a party

objects to a special master referral, they must do so

prior to engaging in any proceedings before the

master.18

The objecting party may seek mandamus

relief if their objection is overruled, but only if relief is

sought in a timely fashion.19

In 1999, the Houston [14th] Court of Appeals held

in a mandamus opinion that both the appointment of a

special master and the scope of discovery are matters

committed to the trial court's discretion. The court also

placed the burden to establish that the trial court could

have reached only one decision in each matter on the

party seeking mandamus relief.20

Limitations have been placed on special master

appointments by Texas courts. In 1993, the Texas

Supreme Court held in a one page opinion that a trial

court abused its discretion when it referred ―all

pending and future discovery matters‖ to a special

master ―without having ever heard or considered any

15

Simpson, 806 S.W.2d at 811.

16 Id.

17 Id. at 805.

18 Owens-Corning Fiberglass Corp. v. Caldwell, 830 S.W.2d

622, 625 (Tex. App. – Houston [1st Dist.] 1991); David E.

Ketner & Matthew D. Stayton, Preservation of Error, in

16TH ANNUAL CONFERENCE ON STATE AND FEDERAL

APPEALS 18 (UTCLE 2006), http://www.tex-

app.org/articles/preserve_error.pdf.

19 In re Xeller, 6 S.W.3d 618, 624 (Tex. App.—Houston

[14th

Dist.] 1999, orig. proceeding); Ketner & Stayton, supra

note 18, at 18.

20 Xeller, 6 S.W.3d 623-24.

E-Discovery And The Use Of Special Masters Chapter 3

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discovery matter pending in this action.‖21

In Tollett v.

Carmona, the Houston [14th] Appeals Court stated that

the law strongly disfavors the use of a special master.22

In 1998, the Dallas Court of Appeals again held in In

re Sheets that when the parties do not agree to a special

master appointment, the case must be exceptional and

good cause to appoint a special master must exist.23

In

2010, the Houston [14th] Appeals Court also struck

down a trial court‘s special master appointment in a

mandamus proceeding because the case did not meet

the ―exceptional case‖ and ―good cause‖ requirements

of Rule 171.24

According to the Appeals Court, ―This

case falls far short of the complexity of Simpson and

Owens-Corning, cases that the Texas supreme court

and this Court found were not exceptional,‖ and ―the

master was given powers much broader than a master

appointed for pre-trial discovery only.‖25

Duties imposed upon a special master have also

been limited in Texas. In TransAmerican Natural Gas

Corp. v. Mancias, the court held it was an abuse of

discretion to require the special master to be available

for deposition and trial.26

The Beaumont Court of

Appeals held in AIU Ins. Co. v. Mehaffy that although

Rule 171 confers broad power to appoint a special

master upon a trial judge, the master cannot investigate

and inquire into patterns of discovery abuse because it

places the master in an adversarial position.27

ESI Production in Texas

In 2008, the Waco Court of Appeals held that a

discovery order which required defendants to permit a

forensic expert to create a mirror image of each of their

office computer hard drives was not overly broad

because the expert was qualified, the order specifically

limited the expert's search to two particular documents

on which the underlying lawsuit was based, the order

gave defendants a ―right of first refusal‖ with regard to

determining which documents or information were

relevant to those two documents and responsive to

21

Academy of Model Aeornautics, Inc. v. Packer, 860

S.W.2d 419, 419 (Tex. 1993).

22 Tollett v. Carmona, 915 S.W.2d 562 (Tex. App. –

Houston [14th

Dist.] 1995, no writ).

23 In re Sheets, 971 S.W.2d 745 (Tex. App. – Dallas 1998,

no pet.).

24 Suttles v. Vestin Realty Mortg. I, Inc., 317 S.W.3d 412,

419-20 (Tex. App. – Houston [14th Dist.] 2010, no pet.).

25 Id. at 419.

26 TransAmerican Natural Gas Corp. v. Mancias, 877

S.W.2d 840 (Tex. App. - Corpus Christi, 1994, orig.

proceeding).

27 AIU Ins. Co. v. Mehaffy, 942 S.W. 2d 796, 802 (Tex.

App. – Beaumont 1997, orig. proceeding).

plaintiff's discovery request, the order imposed

stringent limitations on inadvertent disclosures to

maintain confidentiality and privilege, and the order

placed all participants in the imaging process under a

carefully drawn protective order.28

The Dallas Court of Appeals held in MRT, Inc. v.

Vounckx that developers who had destroyed backup

tapes and did not timely produce others in response to

requests for production did not violate Rule 196.4 of

the Texas Rules of Civil Procedure because the

plaintiff did not initially specifically request production

of the tapes or documents that resided on them.29

Rule

196.4 applies specifically to e-discovery and states:

196.4 Electronic or Magnetic Data.

To obtain discovery of data or information

that exists in electronic or magnetic form, the

requesting party must specifically request

production of electronic or magnetic data and

specify the form in which the requesting

party wants it produced. The responding

party must produce the electronic or

magnetic data that is responsive to the

request and is reasonably available to the

responding party in its ordinary course of

business. If the responding party cannot -

through reasonable efforts - retrieve the data

or information requested or produce it in the

form requested, the responding party must

state an objection complying with these rules.

If the court orders the responding party to

comply with the request, the court must also

order that the requesting party pay the

reasonable expenses of any extraordinary

steps required to retrieve and produce the

information.30

In 2009, the Supreme Court of Texas, guided by case

law under the federal rules, held in a mandamus

opinion that ―ordering four of the defendant‘s

employees to turn over their computer hard drives to

forensic experts for imaging, copying, and searching

for deleted emails‖ was particularly intrusive.31

According to the court,

28

In re Honza, 242 S.W.3d 578 (Tex. App.-Waco 2008, pet.

denied).

29 MRT, Inc. v. Vounck, 299 S.W.3d 500 (Tex. App. –

Dallas 2009, no pet).

30 Tex. R. Civ. P. 196.4.

31 In re Weekley Homes, 295 S.W.3d 309, 311 (Tex. 2009,

orig. proceeding).

E-Discovery And The Use Of Special Masters Chapter 3

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Under Federal Rule of Civil Procedure

26(b)(2)(B), a trial court may order

production of information that is not

reasonably available only ―if the requesting

party shows good cause.‖ In determining

whether the requesting party has

demonstrated ―good cause,‖ the court must

consider, among other factors, ―whether the

burden or expense of the proposed discovery

outweighs its likely benefit, considering the

needs of the case, the amount in controversy,

the parties‘ resources, the importance of the

issues at stake in the action, and the

importance of the discovery in resolving the

issues.‖

FED. R. CIV. P. 26(b)(2)(C)(iii). The Texas

rules do not expressly require a ―good cause‖

showing before production of not-

reasonably-available electronic information

may be ordered, but they do require a trial

court to limit discovery when ―the burden or

expense of the proposed discovery outweighs

its likely benefit, taking into account the

needs of the case, the amount in controversy,

the parties‘ resources, the importance of the

issues at stake in the litigation, and the

importance of the proposed discovery in

resolving the issues.‖

TEX. R. CIV. P. 192.4(b). Thus, both the

federal rule and ours require trial courts to

weigh the benefits of production against the

burdens imposed when the requested

information is not reasonably available in the

ordinary course of business. We see no

difference in the considerations that would

apply when weighing the benefits against the

burdens of electronic-information

production; therefore we look to the federal

rules for guidance.32

The Texas Supreme Court added,

Providing access to information by ordering

examination of a party‘s electronic storage

device is particularly intrusive and should be

generally discouraged, just as permitting

open access to a party‘s file cabinets for

general perusal would be.33

32

Id. at 317.

33 Id.

Finally, two related cases out of the Houston [1st] Court

of Appeals in 2010 read Rule 171 quite narrowly.34

In

both cases, celebrity Anna Nicole Smith‘s mother,

Virgie Arthur, alleged in an underlying lawsuit that she

had been defamed by Howard K. Stern and other

individuals who conspired with him to defame her.

Stern challenged Texas‘ personal jurisdiction over him

and filed a special appearance with the court. In an

effort to establish whether or not Texas had personal

jurisdiction over the defendants, the trial court

appointed a special master to examine the defendants‘

ESI.

In In re Harris, the Court of Appeals found that

the trial court abused its discretion by appointing a

special master and forensic examiner, ordering

defendants to turn hard drives over to the master, and

providing the master with the power to search the hard

drives for documents because the plaintiff failed to

show there was a direct relationship between the

electronic storage devices she sought and her claims.35

The court held that the order was overbroad and

violated the ―exceptional case‖ and ―good cause‖

standards of Rule 171. The Appeals Court also stated

it was unclear whether the documents being sought

were relevant or reasonably calculated to lead to

relevant evidence as required by Rule 196.4.36

In In re Stern, the plaintiff tried again to establish

personal jurisdiction over Stern and alleged that Stern

conspired against her via email with a Texas resident.37

The trial court again appointed a special master and

forensic examiner to examine Stern‘s hard drive. The

special master was provided with unrestricted access to

all documents on the hard drive and discretion to

employ or modify search terms. The Appeals Court

held that this was an abuse of discretion because no

showing was made to demonstrate that a search of

Stern‘s hard drive would recover relevant materials,

particularly since Stern utilized an Internet-based email

system.38

The court also held that the trial court‘s

discovery order violated Texas Rules of Civil

34

See Karl Bayer, The First Court of Appeals of Texas

Limits Scope of Special Master Authority in eDiscovery,

DISPUTING (Sept. 16, 2010),

http://www.karlbayer.com/blog/?p=10920; Peter S. Vogel,

supra note 4.

35 In re Harris, 315 S.W.3d 685 (Tex. App.—Hous. [1st

Dist.] 2010, orig. proceeding). A copy of the order

appointing a special master is available at

http://www.supreme.courts.state.tx.us/ebriefs/09/09076101A

pp.pdf.

36 In re Harris, 315 S.W.3d at 704.

37 In re Stern, 321 S.W.3d 828 (Tex. App. – Houston [1st

Dist.] 2010).

38 Id.

E-Discovery And The Use Of Special Masters Chapter 3

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Procedure 192.3, 192.4, 193, and 196.4 because the

order appointing a special master was not narrowly

tailored to avoid the inclusion of information irrelevant

to the establishment of jurisdiction, and was

overbroad.39

Despite the plain language of Rule 171, the Court

of Appeals held the ―trial court clearly abused its

discretion in appointing . . . [a] special master and

forensic examiner with power to search Stern‘s

computer hard drive for documents and in ordering

Stern to turn his hard drive over to him.‖40

In reversing

the order appointing a special master, the Court of

Appeals declared that the lower court‘s order required

what amounted to unrestricted production from Stern‘s

hard drive and authorized ―an impermissible ‗fishing

expedition.‘‖41

Other Relevant Statutes

Chapter 154 of the Texas Civil Practice and

Remedies Code provides authority for a judge to refer

a case to an impartial third party without formal

alternative dispute resolution training.42

Chapter 154

states in relevant part:

SUBCHAPTER C. IMPARTIAL THIRD

PARTIES

Sec. 154.052. QUALIFICATIONS OF

IMPARTIAL THIRD PARTY.

(a) Except as provided by Subsections (b)

and (c), to qualify for an appointment as

an impartial third party under this

subchapter a person must have

completed a minimum of 40 classroom

hours of training in dispute resolution

techniques in a course conducted by an

alternative dispute resolution system or

other dispute resolution organization

approved by the court making the

appointment.

(b) To qualify for an appointment as an

impartial third party under this

subchapter in a dispute relating to the

parent-child relationship, a person must

complete the training required by

Subsection (a) and an additional 24

hours of training in the fields of family

39

Id.

40 Id.

41 Id.

42 TEX. CIV. PRAC. & REM. § 154.052(c) (2010); Craig Ball,

E-Discovery: A Special Master’s Perspective, 51 ADVOC.

(Tex.) 42 (2010).

dynamics, child development, and

family law.

(c) In appropriate circumstances, a court

may in its discretion appoint a person as

an impartial third party who does not

qualify under Subsection (a) or (b) if the

court bases its appointment on legal or

other professional training or experience

in particular dispute resolution

processes.43

III. SURVEY OF FEDERAL LAW

In federal court, Rule 53 of the Federal Rules of

Civil Procedure governs when a special master may

properly be appointed to a case and outlines the scope

of his or her authority.44

Although the language of the

rule changed in 2003, its intent did not.45

Rule 53(a)

currently states:

Rule 53. Masters

(a) APPOINTMENT.

(1) Unless a statute provides otherwise,

a court may appoint a master only

to:

(A) perform duties consented to by

the parties;

(B) hold trial proceedings and

make or recommend findings

of fact on issues to be decided

by the court without a jury if

appointment is warranted by

(i) some exceptional

condition, or

(ii) the need to perform an

accounting or resolve a

difficult computation of

damages; or

(C) address pretrial and post-trial

matters that cannot be

addressed effectively and

timely by an available district

judge or magistrate judge of

the district.

43

TEX. CIV. PRAC. & REM. § 154.052(c)

44 FED. R. CIV. P. 53.

45 See 9C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 2602.1, at 541-42, §

2603 at 558-59 (3d ed.2008).

E-Discovery And The Use Of Special Masters Chapter 3

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(2) A master must not have a

relationship to the parties, counsel,

action, or court that would require

disqualification of a judge under 28

U.S.C. § 455 unless the parties

consent with the court‘s approval to

appointment of a particular person

after disclosure of any potential

grounds for disqualification.

(3) In appointing a master, the court

must consider the fairness of

imposing the likely expenses on the

parties and must protect against

unreasonable expense or delay.46

It is well-settled that "[t]he use of masters is `to aid

judges in the performance of specific judicial duties, as

they may arise in the progress of a cause,'...and not to

displace the court."47

Moreover, a ―congested docket,

the complexity of issues and the extensive amount of

time required for a trial do not, either individually or as

a whole, constitute an exceptional condition justifying

a Rule 53 appointment of a Special Master in an

antitrust case.‖48

In 2001, the Fifth Circuit held that a district court

abused its discretion when it referred motions for

summary judgment and other liability and remedy

issues related to Clean Water Act obligations to a

special master.49

Despite that the case had been

pending for two years at the time of the appointment,

the filings contained highly technical documents, the

case concerned compliance with both state and federal

regulations, and the sheer volume of documents it was

―not so exceptional as to require reference of

dispositive matters‖ to a special master.50

According

to the court, ―If the district court's reasons were

sufficient to constitute an exceptional condition under

Rule 53, they ‗would make references the rule rather

than the exception.‘‖51

In Shafer v. Army & Air Force Exchange Service,

the Fifth Circuit held that Fed. R. Civ. P. 53(e)(2),

which requires a district court in a non-jury action to

accept a special master's findings of fact unless clearly

erroneous, imposes an ―an independent obligation on

the district court to review the Special Master's factual

46

FED. R. CIV. P. 53.

47 La Buy v. Howes Leather Co., 352 U.S. 249 (1957)

quoting Ex parte Peterson, 253 U. S. 300, 312 (1920).

48 Goins v. Hitchcock I.S.D., 191 F.Supp.2d 860 (S.D. Tex.

2002).

49 Sierra Club v. Clifford, 257 F.3d 444 (5th Cir. 2001).

50 Id.

51 Id. at ____ quoting La Buy, 352 U.S. at 259.

findings for clear error.‖52

The obligation ―includes

examining all relevant evidence, including in some

cases the hearing transcripts in their entirety.‖53

Because the district court adopted the special master's

recommendations prior to receiving hearing transcripts

or exhibits from parties, the Fifth Circuit held the

lower court failed to meet its obligations under Rule

53.54

In a gender discrimination lawsuit filed under

Title IX, the Southern District of Texas stated,

―Generally, Rule 53 permits masters to be appointed

only in exceptional circumstances.‖55

After noting that

justice delayed is often justice denied in discrimination

cases, the court held that although ―the relaxed

standard for the appointment of Special Masters in

Title VII cases applie[d],‖ the appointment of a special

master was ―wholly unwarranted‖ because it ―would

only delay the ultimate resolution of this case and bring

about considerable added expenses for all involved,

without providing any corresponding benefits to the

Parties.‖56

ESI Production in Federal Court

Rule 34 of the Federal Rules of Civil Procedure

governs production, including ESI.57

Rule 34 states:

Rule 34. Production of Documents and

Things and Entry Upon Land for

Inspection and Other Purposes

(a) SCOPE. Any party may serve on any

other party a request (1) to produce and

permit the party making the request, or

someone acting on the requestor‘s behalf, to

inspect and copy, any designated documents

(including writings, drawings, graphs, charts,

photographs, phonorecords, and other data

compilations from which information can be

obtained, translated, if necessary, by the

respondent through detection devices into

reasonably usable form), or to inspect and

copy, test, or sample any tangible things

which constitute or contain matters within

the scope of Rule 26(b) and which are in the

possession, custody or control of the party

52

Shafer v. Army & Air Force Exchange Service, 277 F.3d

788 (5th Cir. 2002)

53 Id.

54 Id.

55 Goins v. Hitchcock I.S.D., 191 F.Supp.2d 860 (S.D. Tex.

2002).

56 Id.

57 FED. R. CIV. P. 34.

E-Discovery And The Use Of Special Masters Chapter 3

7

upon whom the request is served; or (2) to

permit entry upon designated land or other

property in the possession or control of the

party upon whom the request is served for

the purpose of inspection and measuring,

surveying, photographing, testing, or

sampling the property or any designated

object or operation thereon, within the scope

of Rule 26(b).

(b) PROCEDURE. The request shall set

forth, either by individual item or by

category, the items to be inspected, and

describe each with reasonable particularity.

The request shall specify a reasonable time,

place, and manner of making the inspection

and performing the related acts. Without

leave of court or written stipulation, a request

may not be served before the time specified

in Rule 26(d).

The party upon whom the request is served

shall serve a written response within 30 days

after the service of the request. A shorter or

longer time may be directed by the court or,

in the absence of such an order, agreed to in

writing by the parties, subject to Rule 29.

The response shall state, with respect to each

item or category, that inspection and related

activities will be permitted as requested,

unless the request is objected to, in which

event the reasons for the objection shall be

stated. If objection is made to part of an item

or category, the part shall be specified and

inspection permitted of the remaining parts.

The party submitting the request may move

for an order under Rule 37(a) with respect to

any objection to or other failure to respond to

the request or any part thereof, or any failure

to permit inspection as requested.

A party who produces documents for

inspection shall produce them as they are

kept in the usual course of business or shall

organize and label them to correspond with

the categories in the request.

(c) PERSONS NOT PARTIES. A person not

a party to the action may be compelled to

produce documents and things or to submit to

an inspection as provided in Rule 45.58

In 2010, two prominent federal e-discovery judges

drafted notable opinions which addressed a party‘s

58

Id.

conduct and culpability with regard to preserving and

collecting documents relevant to ongoing litigation.59

In Pension Committee of the University of Montreal

Pension Plan v. Banc of America Securities, LLC, the

Southern District of New York tackled negligence in

the preservation of e-discovery documents.60

The

opinion laid out a careful analysis of spoliation and

sanctions issues in the e-discovery realm. In Pension

Committee, the court deemed a party‘s failure to issue

a written litigation hold as ―gross negligence‖ because

―that failure is likely to result in the destruction of

relevant information.‖61

In Rimkus Consulting Group, Inc. v. Cammarata,

former employees of a forensic engineering contractor

were alleged to have deleted relevant emails

intentionally and in bad faith despite that they were

aware of ongoing litigation at the time the documents

were deleted.62

The court in Rimkus generally agreed

with the Pension Committee court, but instead relied on

the Sedona Principles to determine acceptable

preservation and discovery conduct when addressing

allegations of intentional spoliation. According to the

court, what is acceptable ―depends on what is

reasonable, and that in turn depends on whether what

was done — or not done — was proportional to that

case and consistent with clearly established applicable

standards.‖63

According to the Rimkus court, mere

gross negligence in e-discovery would not result in an

adverse inference instruction.64

The Rimkus court

weighed what is reasonable and proportional in a given

case and reinforced the notion that every e-discovery

case must be viewed on its own merit.65

59

Jessica C. Mederson & Erica Lee Krennerich, Two Key

Electronic Discovery Opinions Take Center Stage in Early

2010, LITIGATION NEWS 2010, http://www.vinson-

elkins.com/resources/TwoKeyElectronicDiscoveryOpinions

Early2010.aspx.

60 Pension Comm. of the Univ. of Montreal Pension Plan v.

Banc of Am. Sec., LLC, 685 F.Supp.2d 456 (S.D.N.Y.

2010).

61 Id.

62 Rimkus Consulting Group, Inc. v. Cammarata, 688

F.Supp.2d 598 (S.D. Tex. 2010).

63 Id.

64 Id.

65 David Woodcock & Jessica Mederson, Prominent District

Court Decision Suggests Pension Committee May Have

More Limited Application in the Fifth Circuit, V&E

ELECTRONIC DISCOVERY UPDATE E-COMMUNICATION

(March 22, 2010),

http://www.velaw.com/resources/ProminentDistrictCourtDe

cisionSuggestsPensionCommitteeMayHaveMoreLimitedAp

plicationinFifthCircuit.aspx.

E-Discovery And The Use Of Special Masters Chapter 3

8

Rule 26(f) Meet and Confer Requirement

Rule 26(f) of the Federal Rules of Civil Procedure

requires the parties in a federal case to confer and

attempt in good faith to create a discovery plan.66

Rule

26(f) states:

(f) CONFERENCE OF PARTIES;

PLANNING FOR DISCOVERY. Except in

categories of proceedings exempted from

initial disclosure under Rule 26(a)(1)(E) or

when otherwise ordered, the parties must, as

soon as practicable and in any event at least

21 days before a scheduling conference is

held or a scheduling order is due under Rule

16(b), confer to consider the nature and basis

of their claims and defenses and the

possibilities for a prompt settlement or

resolution of the case, to make or arrange for

the disclosures required by Rule 26(a)(1),

and to develop a proposed discovery plan

that indicates the parties‘ views and

proposals concerning:

(1) what changes should be made in

the timing, form, or requirement for

disclosures under Rule 26(a),

including a statement as to when

disclosures under Rule 26(a)(1)

were made or will be made;

(2) the subjects on which discovery

may be needed, when discovery

should be completed, and whether

discovery should be conducted in

phases or be limited to or focused

upon particular issues;

(3) what changes should be made in

the limitations on discovery

imposed under these rules or by

local rule, and what other

limitations should be imposed; and

(4) any other orders that should be

entered by the court under Rule

26(c) or under Rule 16(b) and (c).

The attorneys of record and all unrepresented

parties that have appeared in the case are

jointly responsible for arranging the

conference, for attempting in good faith to

agree on the proposed discovery plan, and for

submitting to the court within 14 days after

the conference a written report outlining the

plan. A court may order that the parties or

attorneys attend the conference in person. If

necessary to comply with its expedited

66

FED. R. CIV. P. 26.

schedule for Rule 16(b) conferences, a court

may by local rule (i) require that the

conference between the parties occur fewer

than 21 days before the scheduling

conference is held or a scheduling order is

due under Rule 16(b), and (ii) require that the

written report outlining the discovery plan be

filed fewer than 14 days after the conference

between the parties, or excuse the parties

from submitting a written report and permit

them to report orally on their discovery plan

at the Rule 16(b) conference.

The Rule 26(f) conference is an excellent time for the

parties to engage a mediator or discuss the option of

requesting a special master. IV. PRACTICE TIPS

Failure to effectively manage e-discovery can lead

to severe monetary sanctions or adverse case results.67

In recent decades, the definition of the term

"documents" has expanded exponentially to include

voice mail messages, social networking

communications, instant messages, and blogs.68

Some

practical tips for managing e-discovery are included

below.

Special Master Appointment Order

When a special master is appointed in the State of

Texas, it is absolutely crucial to obtain an extremely

specific appointment order. It is a good practice to

ensure that the appointment order specifies in detail the

special master‘s duties, includes specific time limits,

details how parties are to comply with the order and

how the master‘s recommendations will be filed with

court. See Appendix A for an Exemplar ESI Special

Master Appointment Order.69

E-Mediation

Mediation can be a useful tool for handling a case

effectively. It is no longer just for settlement purposes,

however.70

Parties may also agree to mediate their

disputes during the discovery phase of litigation.71

67

Kevin L. Nichols, E-Discovery Crashes the Computer

Forensics Show, LAW.COM (Nov. 18, 2010),

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN

.jsp?id=1202475033597&rss=ltn

68 Id.

69 See Ball, supra note 42, at 48.

70 Allison O. Skinner, The Role of Mediation for ESI

Disputes, (May 5, 2009) http://smu-

ecommerce.gardere.com/allison%20skinner%20role%20of%

20mediation.pdf.

71 Id.

E-Discovery And The Use Of Special Masters Chapter 3

9

Where possible, it is almost always a good idea to

consider mediating an e-discovery dispute in order to

reach mutually agreed upon solutions. The mediation

process can be a critical tool for handling the often

uncontrollable and seemingly endless nature of e-

discovery effectively.72

The opportunity for self

determination afforded by the mediation forum will

often provide parties involved in an e-discovery

dispute with the chance to be creative and seek out

mutually agreed upon solutions. Answers to critical e-

discovery questions such as the forms of ESI being

sought, the format in which documents will be

produced, and acceptable filtering practices can often

be agreed upon through mediation. Mediating an e-

discovery dispute also provides the parties with an

opportunity to make proposals confidentially.73

Mediating e-discovery allows parties to:

self-direct workable solutions,

define scope parameters,

determine relevancy,

create timelines for production or ―e-

depositions,‖

propose confidential compromises,

create efficiencies with a mutual discovery

plan,

set guidelines for asserting violations of the

plan,

create boundaries for preservation,

avoid spoliation pitfalls,

manage protection of privileged information,

maintain credibility with the court,

avoid court-imposed sanctions, and

allocate costs.74

Issues which should be addressed for each discovery

request include:

Request number,

Type of data,

Accessibility,

Format,

Search parameters,

Method of production,

Preservation,

Privilege issues,

Waiver,

Timing of production

Cost burden, and

Control method75

72

Id.

73 Id.

74 Id.

Even where all discovery disputes cannot be reconciled

at the mediation, the process itself still provides parties

with a better understanding of the key disputes which

must be presented to the court.76

In the end, the

mediation of e-discovery disputes has the potential to

save all parties both time and money, and help to build

or maintain your credibility with the court.77

Privilege Review

Preserving privileged communications is a crucial

aspect of every case. Often, even after the parties

agree on a keyword search or other method of review

to determine responsiveness, attorneys insist on

performing a page by page privilege review. This is

both time consuming and costly. Too often, the

privilege review is performed by contract attorneys

with little or no training in the matter at hand in an

effort to cut costs. Add to that the frequent practice of

performing second and sometimes third level privilege

reviews and the time and resources expended to create

a privilege log and you have a costly endeavor.

It would seem that every attorney in America has

a different definition of what constitutes a privileged

document. A distinction must be made between truly

privileged communications and those in which an

attorney is merely copied or simply participating in a

business matter. Because a special master is a

representative of the court, he or she may assist parties

in making privilege determinations with the added

benefit of avoiding privilege waiver. In such a context,

using a special master can save parties time, resources,

and the risk of costly monetary sanctions.

Avoiding privilege waiver is a powerful incentive

to collaborate with the other party on your search

methods, test the methods you use for searching,

review your discard pile, get expert help and always

get a clawback agreement.78

Entering into a strong

clawback agreement, or contract between the parties

which states inadvertent disclosure of privileged

material in discovery will not constitute waiver of

privilege, is essential.79

Utilizing the skills of a special

75

Id.

76 Id.

77 Id.

78 Craig Ball, Keyword Searches: A Grim Prognosis,

LAW.COM (July 24, 2008),

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN

.jsp?id=1202423197832.

79 Jonathan Yeh, Clawback Agreeements in the Wake of

FRE 502, Rule26Blog (Nov. 18, 2009), http://www.digital-

legal.com/index.php/rule26/49-blog/149-clawback-

agreements-in-the-wake-of-fre-502; Craig Ball, Getting to

the Drive,

http://www.craigball.com/Getting_to_the_Drive.pdf.

E-Discovery And The Use Of Special Masters Chapter 3

10

master during this process may also strengthen your

clawback agreement. According to the Eastern District

of Pennsylvania, ―[T]he court considers that the parties

will be bound by the rules and protocols they, in

conjunction with the e-discovery master, devised,

including the terms of the Clawback Agreement.‖80

―Alternatively, the parties may agree to place the

drive in the hands of a jointly-selected neutral with

instructions to perform specified searches and recover

deleted and hidden data, then share whatever is found

with the producing party. The producing party then

asserts any privileges, whereupon non-privileged

material is shared with the requesting party and the

balance held from production pending resolution of

privilege claims.‖81

Even with a clawback agreement,

it is essential to ensure a neutral examiner is operating

under orders to initially reveal findings only to the

producing party in order to facilitate objection and

creation of a privilege log.82

Choosing the Right Special Master

There is no list of ―approved‖ special masters, so

choosing the right master for your particular case is an

important art.83

The special master you select should

not only be highly skilled in the technical aspects of e-

discovery, but also knowledgeable about the law of

evidence and procedure.84

Choosing a master with

great technical skills, but a limited concept regarding

how the legal process works can be a recipe for

disaster.

When choosing a special master, you should seek

out leaders in the field. As with most areas of the law,

it is wise to ―ask other lawyers and judges who to use

and avoid, and delve into the professional literature to

spot scholarship and leadership.‖85

Tips for Succeeding with a Special Master When conducting e-discovery, the following are

key questions to consider before you meet with the

special master:85

80

Bro-Tech Corp. v. Thermax, Inc., 2008 WL 5210346,

2008 U.S. Dist. LEXIS 21233 (E.D. Pa. Dec. 11, 2008).

81 See Ball, supra note 79.

82 Id.

83 Peter S. Vogel and Allison O. Skinner, TexasBarCLE

Webcast ―When to Use eMediation or Special Masters in

eDiscovery‖ (Feb. 16, 2010).

84 Id.

85 See Martin Quinn, Succeeding with a Special Master,

CALIFORNIA LAWYER (April 2010),

http://www.callawyer.com/story.cfm?pubdt=NaN&eid=908

789&evid=1; See also Ball, supra note 42.

1. What are your client’s systems? What type

of email system does your client use? Is it

Webmail, Exchange Mail, Lotus Notes, or

something else? Is your client's ESI

centralized or dispersed? How do you access

it? How is archiving managed? What sorts

of technologies do the key players use that

might contain relevant ESI? Which data are

at greatest risk of destruction, or becoming

extremely expensive to recover? In order to

be a more effective advocate for your client‘s

interests, you should be able to speak and

understand the information technology (IT)

lingo. Sometimes, merely being capable of

asking the right IT questions can make all of

the difference in the world.86

2. What is your client’s retention policy and

litigation hold preservation plan? It is

important for your client to have an effective

litigation hold process in place. You should

also know their retention policy, back-up

practices, key players and which data are at

greatest risk of destruction. Most

importantly, the retention policy must

actually be followed. Be proactive and meet

with your client‘s IT personnel at regular

intervals in order to ensure everyone

involved understands and complies with

retention policies.87

3. Do you have reasonable expectations? The

sheer volume of information involved in e-

discovery today necessitates compromise.

You cannot get everything you want or ask

for, so trim the fat off your requests. A

special master will expect that the parties

have discussed the file types which may be

excluded, filtering, keyword searches and

privileged material which requires redaction.

Meet as soon as possible to discuss these

matters with opposing counsel. Bring

technical consultants and IT personnel from

both your client and your own firm, if

feasible. Provide the special master with a

jointly agreed upon plan for court approval

where possible. On those points where

collaboration has failed, present the special

master with your own plan, but be

reasonable. Also, it is a good idea to get

your client‘s agreement with the e-discovery

plan in writing.88

86

Id.

87 Id.

88 Id.

E-Discovery And The Use Of Special Masters Chapter 3

11

4. What ESI do you actually seek? Are your

requests for production specific? Have you

specified the form(s) of production you seek?

How will important ESI be preserved? Begin

e-discovery with ESI that is easily accessible

and propose reasonable time limits for email

data retrieval. Where possible, agree to use

sensible search terms. Don‘t request

information from archives and back-up tapes

unless it is necessary. Is the format you

requested production in compatible with the

way in which you will conduct your review

of the documents? Have you considered how

you plan to search, filter and redact your own

ESI? It is a good idea to be prepared with a

plan and search protocol in the event

additional discovery becomes necessary.89

5. Are your responses specific? Do not

respond with boilerplate objections. Instead,

be honest and state which information your

clients does and does not have. Explain

exactly why you cannot reasonably produce

requested ESI. Will it cause an undue

hardship? How so? Is the information gone?

Are you sure about that? In the alternative,

explain to the special master when making

ESI requests exactly how such information

will prepare the case for trial or eventual

settlement.90

The Electronic Discovery Reference Model

The Electronic Discovery Reference Model

(EDRM) was created by e-discovery experts and

consultants in order to establish guidelines, set

standards and deliver e-discovery resources.91

The

EDRM,

was created in May 2005 to address the lack

of standards and guidelines in the electronic

discovery (e-discovery) market – a problem

identified in the 2003 and 2004 Socha-

Gelbmann Electronic Discovery surveys as a

major concern for consumers and providers

alike.

The completed reference model provides a

common, flexible and extensible framework

for the development, selection, evaluation

and use of electronic discovery products and

89

Id.

90 Id.

91 The Electronic Discovery Reference Model,

http://edrm.net/.

services. The completed model was placed in

the public domain in May 2006.92

The EDRM is engaged in several projects

including data sets, evergreen, metrics and a

model code.

EDRM supplies guidelines, standards,

whitepapers, research materials, Webinars,

news, data sheets and other items to help

educate e-discovery consumers and

providers. These materials can be found on

the EDRM Web site, http://edrm.net, as well

as on the Web sites of most participating

organizations.93

V. CONCLUSION

When engaged in e-discovery, utilizing the skills

of a special master can save all parties to litigation both

time and money. It can also make the process less

burdensome for everyone involved. In order to expose

Texas litigators to some of the issues at play when

engaging in electronic discovery, this paper provided

an overview of both Texas and Federal case law

regarding e-discovery and the use of special masters.

Additionally, this paper provided some useful things to

consider when using a special master in an e-discovery

context, practice tips, and a sample appointment order.

92

Id. at http://edrm.net/joining-edrm/frequently-asked-

questions.

93 Id.

E-Discovery And The Use Of Special Masters Chapter 3

13

APPENDIX A: Exemplar ESI Special Master Appointment Order94

IN THE UNITED STATES DISTRICT COURT FOR THE ____ DISTRICT OF _____ ______ DIVISION

[STYLE]

ORDER APPOINTING SPECIAL MASTER FOR ESI

1. ___________ of _____, Texas, is hereby appointed as Special Master for Electronically Stored Information

pursuant to Rule 53 of the Federal Rules of Civil Procedure. [Mr.] [Ms.] ________ has filed the certification required

by Rule 53(b)(3).

2. The Special Master shall proceed with all reasonable diligence to assist and, when necessary, direct the parties in

completing required identification, preservation, recovery and discovery of electronically stored information with

reasonable dispatch and efficiency.

3. The Special Master shall review with the parties ongoing discovery requests to determine where potentially

responsive information is stored and how it can most effectively be identified, accessed, preserved, sampled,

searched, reviewed, redacted and produced. To the extent the parties have disputes as to these matters, the Special

Master may initiate or participate in the parties‘ efforts to resolve same. He is authorized to resolve issues as to the

scope and necessity of electronic discovery, as well as search methods, terms and protocols, means, methods and

forms of preservation, restoration, production and redaction, formatting and other technical matters.

4. The Special Master is granted the full rights, powers and duties afforded by F.R.C.P. Rule 53(c) and may adopt

such procedures as are not inconsistent with that Rule or with this or other Orders of the Court. The Special Master

may by order impose upon a party any sanction other than contempt and may recommend a contempt sanction

against a party and contempt or any other sanction against a non-party.

5. The Special Master shall be empowered to communicate on an ex parte basis with a party for purposes of seeking

to maintain the confidentiality of privileged, trade secret or proprietary information or for routine scheduling and

other matters which do not concern the merits of the parties‘ claims. The Special Master may communicate with the

Court ex parte on all matters as to which the Special Master has been empowered to act. The Special Master shall

enjoy the same protections from being compelled to give testimony and from liability for damages as those enjoyed

by other federal judicial adjuncts performing similar functions.

6. The Special Master shall regularly file a written report, in such format he deems most helpful, identifying his

activities and the status of matters within his purview. The report should identify outstanding issues, with particular

reference to matters requiring Court action. The Special Master shall maintain a record of materials and

communications that form the basis for such reporting by a suitable means determined at the Special Master‘s

discretion.

7. Each side is ordered to designate a lead attorney and a lead technical individual as contacts for the Special Master.

These designees shall have sufficient authority and knowledge to make commitments and carry them out to allow the

Special Master to accomplish his duties. The parties are directed to give the Special Master their full cooperation and

to promptly provide the Special Master access to any and all facilities, files, documents, media, systems, databases

and personnel (including technical staff and vendors) which the Special Master deems necessary to complete his

duties.

8. Disclosure of privileged or protected information connected with the litigation to the Special Master shall not be a

waiver of privilege or a right of protection in this cause and is also not a waiver in any other Federal or State

proceeding; accordingly, a claim of privilege or protection may not be raised as a basis to resist such disclosure.

9. The Court will decide de novo all objections to findings of fact or conclusions of law made by the Special Master.

Any order, report, or recommendation of the Special Master, unless it involves a finding of fact or conclusion of law,

94

Ball, supra note 42.

E-Discovery And The Use Of Special Masters Chapter 3

14

will be deemed a ruling on a procedural matter. The Court will set aside a ruling on a procedural matter only where it

is clearly erroneous or contrary to law.

10. The Special Master‘s compensation, as well as reasonable and necessary expenses, will be paid by the [Plaintiff]

[Defendant] [parties in equal shares]. [Mr.] [Ms.] ________ shall be compensated at his usual and customary rate of

$____ per hour, including time spent in transit or otherwise in connection with this appointment, provided however

that travel time will be paid at one-half (50%) of the usual and customary rate unless substantive work, research or

discussions in support of the engagement are performed while traveling, in which case such activities will be paid at

the usual and customary rate. The Special Master shall submit to both parties invoices for services performed

according to his normal billing cycle and [Plaintiff] [Defendant] [the Plaintiff and Defendant in equal shares] shall

pay such invoices within thirty (30) days of receipt.

11. In making this appointment, the Court has determined that the matters within the purview of the Special Master

necessitate highly specialized technical knowledge and cannot be effectively and timely addressed by an available

district judge or magistrate judge of the district.

SO ORDERED AND ADJUDGED this the _______ day of _______________ 20____.

____________________________________

UNITED STATES DISTRICT JUDGE