The rise of technical issues in litigation is steadily increasing the time and cost of resolving lawsuits. The average civil litigation in federal court takes upwards of 24 months to reach a resolution on the merits. 1 Thus, courts and attorneys are increasingly looking to alternative processes to address technical issues more efficiently, such as the appointment of special
masters or neutrals. This article offers practical guidance on the nuts and bolts of
selecting and working with special masters and neutrals in state and federal court to
help reduce the time and cost of litigation.
Appointing a Discovery Special Master to Resolve Technical Issues in Discovery
A discovery special master is an individual who works at the direction of the courts
to oversee and manage technical issues in the discovery process. Discovery special
masters are the most widely used type of special master and can be valuable in any
case in which complex discovery issues exist that would most efficiently be managed
by an individual with legal and technical expertise.
Appointing a discovery special master differs under state and federal law. For
Washington courts, Superior Court Civil Rule (CR) 53. 3 provides that an appoint-
ment “may be made, for good cause shown, upon the request of any party in pending
litigation or upon the court's own motion.” In federal court, an appointment is made
pursuant to Federal Rule of Civil Procedure (FRCP) 53, which provides that a court
“may appoint a master only to: (A) perform duties consented to by the parties; [or]
(B) hold trial proceedings and make or recommend findings of fact on issues to be
decided without a jury if appointment is warranted.”
Under both state and federal rules, when a court appoints a special master, it pro-
vides an appointment order outlining the scope of the special master’s authority.
However, the federal rules require a great deal more specificity in the appointment
order than the state rules. In Washington, the rule defers to the court on the spe-
cifics of the appointment by stating that “the order … may specify the duties of the
master.” CR 53. 3. Under the federal rules, the appointment order must detail several
items, including: ( 1) the special master’s duties; ( 2) rules for ex parte communication;
( 3) procedures for documentation; ( 4) procedures and standards for reviewing the
special master’s findings; and ( 5) the special master’s compensation. FRCP 53(b)( 2).
Broadly speaking, the state rules defer more to the court on when and how to appoint
a special master than the federal rules.
While the specifics of appointing a special master may differ between federal and
state court, in both cases, the intent is for a special master to adjudicate discovery
disputes and, if appropriate, file a report with findings of fact and law to resolve pending legal issues. This requires both a firm grasp of state and federal law specific to
THE EVOLVING EFFECT OF
TECHNOLOGY IN LITIGATION
by Daniel Garrie
Using Discovery Special Masters,
Technical Special Masters, and