How a Discovery Master Works

John R. Foley accepts appointments as discovery master in complex civil, commercial, and family litigation. He brings more than forty years of trial practice and an understanding of what each side actually needs to prepare its case.

What a Discovery Master Is

Discovery is the stage of a lawsuit where each side obtains information from the other: documents, electronically stored information, written answers to questions, and deposition testimony. In large or contentious cases, discovery generates a steady stream of disputes about what must be produced, what is privileged, and how depositions are conducted. Each dispute that goes to the judge becomes a motion, a hearing date, and a delay.

A discovery master (often called a special master) is a neutral the court appoints to take over that work. The master is available on short notice, can study the documents in detail, and can resolve disputes in days rather than months, leaving the judge free to focus on the merits of the case.

How the Appointment Is Made

In state court, the judge appoints a discovery master by order, very often on a stipulation the parties propose. In federal court, masters are appointed under Federal Rule of Civil Procedure 53. The appointing order defines the master’s duties and authority, how the master communicates with the parties and the court, the procedure and deadlines for asking the judge to review the master’s decisions, and how the master’s fees are shared.

What a Discovery Master Handles

• Scheduling and planning. Setting a discovery plan and deadlines, and keeping the parties to them.
• Document production. Disputes over the scope of requests, the adequacy of responses, and whether a production is complete.
• Electronically stored information. Search terms, custodians, formats, and the cost and burden of collecting email and data.
• Privilege. Reviewing privilege logs and, where needed, reviewing documents privately (in camera) to decide whether attorney-client privilege or work-product protection applies.
• Depositions. Scheduling, limits on time and subject matter, and disputes that arise during a deposition.
• Confidential information. Protective orders and the handling of trade secrets, financial records, and other sensitive material.
• Compliance. Addressing a party’s failure to comply with discovery obligations, and recommending remedies to the court where appropriate.

How Disputes Are Resolved

The process is designed to be fast. Counsel bring a dispute to the master, often first by a short letter or a call. The master may hold a conference with all counsel, ask for brief written positions, review the documents in question, and then rule. Many disputes are resolved at the conference itself, because the master is able to propose a practical middle ground that the parties accept.

When a dispute is not resolved by agreement, the master issues a written ruling or recommendation. Depending on the appointing order, it takes effect unless a party asks the judge to review it within the time the order sets. The judge keeps final authority over the case.

When a Discovery Master Makes Sense

The appointment is most valuable in cases with large document productions, significant electronically stored information, many parties, heavy privilege disputes, or a history of discovery motions. It is also useful where the relationship between counsel has broken down to the point that routine scheduling requires court intervention. The parties usually share the master’s fees, a cost often recovered many times over in avoided motion practice.

Proposing a Discovery Master

Counsel who want to propose John as discovery master can contact the firm. The firm will check for conflicts and can provide a proposed stipulated appointment order for the parties and the court.