Reduce the Cost of Litigation of Using Special Masters and E-Mediation

Corporate & Association Counsel Division of the Federal Bar Association Newsletter

Without belaboring the obvious all information is now electronic, and as a result the cost of litigation is higher than ever because of the volume and complexities of electronic evidence in e-Discovery. However there are at least two paths to help reduce the cost of e-Discovery in today’s litigation: first, by using a special master who is a lawyer and an expert in information technology (IT); and second, by conducting mediations about the management and scope of e-Discovery with a mediator who is an expert in IT and e-Discovery.

Since the 2006 amendments to the Federal Rules of Civil Procedure, the term to describe electronic data is ESI (electronically stored information). As a general rule the ESI gatekeeper for most businesses is the chief information officer (CIO), chief technology officer (CTO), IT director, or the like. Although CIOs are highly skilled technologists, they rarely study law, let alone are lawyers, and as a result, CIOs are not prepared to manage all of the legal issues associated with ESI.

Special Masters

Courts have appointed special masters in state and federal courts for some time, but the advent of ESI gives new value to Federal Rule of Civil  procedure 53 (Rule 53). Most states have similar laws, in particular Texas Rule of Civil Procedure 171 which is very similar to the Rule 53. The special master who is an IT expert and lawyer provides unique technical insight regarding ESI, may hold hearings on ESI disputes and make recommendations to the Judge. Of course, the special master has a unique role in litigation, since the special master represents the Judge and can help interpret complex ESI and IT issues.

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