The Use and Appointment of Special Masters

1. The Use and Appointment of Special Masters Cary Ichter October 11, 2013

2. Demand is Soaring • Between 1997 and 2007, the total number of cases filed in Georgia courts increased from 1,628,530 cases to 2,463,192 cases, or 834,662 more filings in 2007 than in 1997, an increase of 51.25%. • In 1997, the number of cases per 100,000 population filed in state court was 7,812; in 2007 the number per 100,000 total population filed in state court was 9,933, an increase of 27.15%. For each of the types of courts tracked, there were double-digit percentage increases. National Center for State Courts, Budget Resource Center, http://www.ncsconline.org/wc/budget/activities/georgia.asp (last visited Oct. 6, 2009).

3. Don’t Expect it to Get Better • The exploding judicial docket • The size and complexity of cases – size and subject matter • The incentives to create controversy – someone has an interest in delay • The courts are out-gunned – resources are diminishing • The courts have other responsibilities – one or two cases cannot be allowed to trump all others

4. What Can Special Masters do to Help? As one noted commentator put it, “Special masters can help redress the imbalance that demoralizes a court that is confronted by the squads of lawyers and masses of data that invariably accompany major cases.” Wayne D. Brazil et al., Managing Complex Litigation: A Practical Guide to the Use of Special Masters at 5 (American Bar Foundation 1983).

5. Empirical Results: Special Masters Help “The work of special masters is very helpful; in fact one judge in responding to the Federal Judicial Center Study ‘wished he had appointed a discovery master earlier.’ The FJC Study shows that generally, judges appointing special masters thought that the ‘benefits of appointments outweighed any drawbacks.’” Thomas E. Willging et al., Special Masters Incidence and Activity, Fed. Jud. Center at 59 (2000).

6. Better, Faster, Fairer The Federal Judicial Center Study concluded that Special Masters delivered “better, faster, and fairer resolution of litigation in the cases in which masters are used, as well as . . . easing the burdens theses cases place on the judiciary.” Thomas E. Willging et al., Special Masters Incidence and Activity, Fed. Jud. Center at 59 (2000).

7. Order Appointing Master • Contents. The order appointing a master must direct the master to proceed with all reasonable diligence and must state: • (A) the master's duties, including any investigative or enforcement duties, and any specific limits on the master's authority; • (B) the circumstances--if any--in which the master may communicate ex parte with the court or a party; • (C) the nature of the materials to be preserved and filed as the record of the master's activities; • (D) the time limits, method of filing the record, other procedures, and standards for reviewing the master's orders, findings, and recommendations; and • (E) the basis, terms, and procedure for fixing the master's compensation pursuant to subparagraph (h) hereof.

8. Special Master’s Affidavit • Entry of Order of Appointment. The court may enter the order appointing a master only after the master has filed an affidavit: (i) disclosing whether there is any ground for disqualification and, if a ground for disqualification is disclosed, after the parties have consented with the court's approval to waive the disqualification; and (ii) certifying that the master shall discharge the master’s duties as required by law and pursuant to the court’s instructions without favor to, or prejudice against any party.

9. Special Master’s Authority • Unless the appointing order expressly directs otherwise, a master has authority to regulate all proceedings and take all appropriate measures to perform fairly and efficiently all assigned duties. Unless otherwise indicated in the court’s order of appointment, the master shall have the power to take evidence, to hear motions and to pass on questions of law and fact within the scope of the referral order. The master may by order impose upon a party any non-contempt sanction, and may recommend to the court a contempt sanction against a party and any sanction against a non-party, including counsel for a party.

10. What do Special Masters do? • Handle all discovery issues in complex cases • Manage ESI discovery and its myriad issues • Hear and make recommendations on Daubertmotions • Handle class certification proceedings • Mediate settlements when agreed to by the parties • Manage settlements in class action cases

11. Why Do Special Masters Help? The only thing a Court cannot do that a Special Master can do is . . . GIVE EACH AND EVERY CASE THE TIME IT REQUIRES • “This sharpened focus will beget more timely and responsive production of requested discovery materials, will decrease the burden upon and the cost to the producing party and will shorten the pretrial discovery stage with commensurately foreshortened litigation.” Richard H. Agins, An Argument for Expanding the Application of Rule 53(b) to Facilitate Reference of the Special Master in Electronic Data Discovery, 23 Pace L. Rev 689, 720 (Spring 2003).

12. An Ounce of Prevention. . . The introduction of a special master “into the discovery process may induce the parties to be more cooperative because they are compelled with an unbiased individual focused on the discovery process, rather than with a beleaguered judge to take note of the dilatory maneuvering.” Richard H. Agins, An Argument for Expanding the Application of Rule 53(b) to Facilitate Reference of the Special Master in Electronic Data Discovery, 23 Pace L. Rev 689, 720 (Spring 2003) (quoting Robert D. McLean, Pretrial Management in Complex Litigation: The Sue of Special Masters in United States v. AT&T, at 278 (American Bar Foundation 1983).

13. . . . Can Yield a Cure “The reality is that efficiencies brought about by special masters ultimately save money for the parties and save public resources.” Thomas E. Willging et al., Special Masters Incidence and Activity, Fed. Jud. Center at 59 (2000).