As the judicial theme for 2009 E-Discovery opinions becomes clear (e.g., Judge Facciola's keynote at Legal Tech stressing cooperation and competence) another trend is likely to emerge: the early appointment of a discovery master for complex ediscovery cases. A recent opinion by Magistrate Waxse (Gipson v. Southwestern Bell, 2008 U.S. Dist. LEXIS 103822) may be foreshadowing things to come. After renewing his endorsement of the Sedona Conference's Cooperation Proclaimation, Judge Waxse admonished the parties to confer on the appointment of a special master to "obtain agreed resolutions of disputed matters."
I believe the use of special masters will see increasing frequency in the months ahead as the parties struggle to come to grips with the new emphasis on cooperation. Litigators are not used to cooperating with opposing counsel and will find it difficult to take off their advocates robes to sit down and find common ground to make discovery speedy, efficient and economical while serving the needs of the parties.
From my own experience as a special master and as an advocate in many e-discovery battles from the meet and confer stage through countless sanctions motions, I believe there is real benefit to expanding the use of a discovery master to ensure the parties have an effective initial meet and confer BEFORE they become locked into discovery battles over spoliation, form of production, completeness and all the other issues leading to sanctions.
Time will tell.
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