New Niche for e-Discovery: Special Masters

I’m telling you, when a field pops, it really pops.  Apparently, the increased use of electronic discovery has resulted in a new set of practitioners: e-discovery special masters.
According to The Daily Record, a special master is an officer of the court appointed to help with its proceedings, and may perform functions such as taking testimony or advising the court as a neutral expert.

“Essentially, you represent the judge and the court as an independent in evaluating technological disputes and electronic discovery issues,” explained Peter S. Vogel, chair of the Electronic Discovery and Document Retention Team and co-chair of the Internet and Computer Technology Practice Group at Gardere Wynne Sewell in Dallas.

Vogel, a partner at the firm, has worked on more than 20 cases with some form of an e-discovery special master. The role varies, explained Judge Shira Scheindlin, a U.S. District Court judge in the Southern District of New York and the author of several seminal opinions on e-discovery, including Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004).

Courts can appoint an electronic discovery special master “for a narrow dispute, such as a privilege review, or a broader task like supervising all discovery,” she said.

Special e-discovery masters have become prevalent because over the last few years, “the level of technical detail simply outgrew what judges and counsel could comprehend,” explained Craig Ball, a trial lawyer and technologist in Austin, Texas, who has served as a special master in approximately two dozen cases. “When neither the attorneys nor the court felt able to ask the right questions or understand the answers, that created the need for a technical special master,” he said.

While some tasks an e-discovery special master might take on are strictly technical, others require legal knowledge and expertise. A special master must “speak fluent litigator and fluent geek,” Ball said. “I couldn’t do what I do without both extensive trial experience and the training and background that qualifies me as a certified computer forensic examiner.”

The actual work performed can vary greatly depending on the case. “Sometimes I am a neutral examiner who sees both sides’ secret and privileged data to ensure that each side is getting what it is entitled to receive without compromising their opponent’s legitimate privacy and privilege issues,” Ball explained.

Alternatively, he said, “I may be a neutral expert advising the court when other experts can’t seem to find common ground.”  On a hands-on level, that means Ball may perform a forensic examination into a party’s electronically stored information, or he may help develop and implement search strategies to remedy a failed e-discovery effort.

And the use of e-discovery special masters will only continue to increase, Ball predicts.
“The demand for the service outstrips the ranks of experienced, technically adept lawyers.” Ball — who charges $500 per hour ($250 per hour for travel plus expenses) and assesses a $5,000 engagement fee credited toward the first 10 hours — said it’s possible to make a living as an electronic discovery special master.

“I made more as a trial lawyer, but enjoyed it less,” he said. “I charge a handsome hourly rate and am fortunate to have nearly all the work I can handle.”

So, listen-up everybody:  if you are a litigation support expert; an e-discovery expert; a paralegal with exceptional e-discovery skills, it only stands to reason that Special Masters are going to need assistance.  Start recommending a new position to accommodate them: e-discovery special masterette.  Or, Junior Master….. or ParaMaster.  Ok, so I’m not good at the name game but all kidding aside: don’t overlook this opportunity to start assisting in this arena.  E-Discovery is not only exploding in terms of volume but in new positions with nice dollars attached to it if you’re good.  Listen to your career instincts:  if you’re savvy enough to spot and interpret the trends, now is the time to ride the horse in the direction its going.