Litigation lawyers and others with regular dealings before the High Court in England and Wales will be familiar with the role of the Master.
Essentially, Masters deal with the administrative aspects of a case in order to facilitate its arrival at trial in good order. Our own Senior Master Whitaker is the senior of the Masters in the Queen’s Bench Division of the High Court and is, of course, well known to practitioners as a staunch advocate of the judicious and proper use of electronic tools to make the process of disclosure both quicker and more cost effective.
Masters occupy an important position in the judicial hierarchy and I have often wondered why the role of Master has not been increased, some might say enhanced, by powers to deal with specific issues which arise in cases before them where they are the undoubted experts in the field under discussion or in dispute and where they can bring this specialist knowledge to bear on the case for the benefit of the parties and the swifter disposal of litigation.
In my view, this is what happens in the US where Special Masters are sometimes appointed to deal, for example, with complex electronic discovery cases. One such Special Master is Craig Ball who describes himself somewhat deprecatingly as an “amalgam of judge and expert and Oprah, with a lot of computer geek thrown in.”
Craig Ball is a frequent commentator on matters relating to e-discovery and it is not, therefore, surprising that he restricts his activities as a Special Master to matters involving electronically stored information (ESI).
I have not met Craig but I have heard him speak both eloquently and entertainingly on the subject of ESI and his role as Special Master. Now I have discovered a recent article he has written giving a Special Master’s Perspective on e-Discovery.
Courtesy of Discovery Resources I reproduce a direct link to this entertaining and informative perspective: E‐Discovery: A Special Master’s Perspective. There are a number of points in the article which are worthy of mention, although, as always, you should read the full text in order to gain the maximum benefit. However, as a by no means exhaustive summary, the ones I particularly like are:
- The notion that Masters must speak geek (his word, not mine) in order to untangle problems arising in litigation disputes over disclosure. Anyone discharging a judicial or quasi-judicial role in the area of ESI must acquire a sufficiently wide knowledge of the technology and the problems involved in getting the best out of it if they are to have any chance of moving the litigation forward in a way which does not involve the parties in unnecessary activity and expense. As one judge put it to me recently (and I paraphrase) “we do not want to make orders which involve solicitors and counsel in fruitless and expensive exercises in pursuit of an ideal when, in fact, there is virtually no chance of completing the task at a reasonable cost or in a sensible timeframe and even if you were able to do so the result would not take matters significantly further.”
- The concept that lawyers involved in litigation must also learn geek in order to know what they need to ask their clients for and just as importantly how to frame their requests for documents from their opponents and to be in a position to deal with any unhelpful replies they may receive. This may seem obvious but many lawyers still do not accept that this is an area in which they should be engaged. “But long term,” says Special Master Ball, “ESI cannot remain the exclusive enclave of experts. Litigators must acquire the expertise and experience to be experts on search.” As he points out , not unreasonably, they have all spent time and effort in becoming expert in paper discovery so why not electronic discovery (which is not the same thing at all but is not that difficult to learn about).
- The questions which lawyers should be able to answer about their clients’ systems. There is inevitably a US flavour to the content of this article but the matters discussed and the tips offered have a much wider resonance than that and are the sort of matters which a good litigation lawyer should be able to articulate and understand. Quoting Craig again, “if one doesn’t appreciate that competent litigators must know where a client’s ESI resides, the forms it takes and information it conveys, the cost and means to preserve and collect it, the risks of spoliation and the capabilities and limitations of automated search, then it’s deceptively easy to dismiss e‐discovery as a delegable responsibility. It’s not.”
The links in the text to other articles written by Craig and his glossary of commonly used terms which he believes any accomplished lawyer should know. For example, see http://www.craigball.com/GeekSpeak.pdf.
By now, you will have got the flavour of the article and there is much more in it which is hard hitting in an amusing way. In many respects it is truly valuable to anyone involved in the management of ESI (or anyone who ought to become so involved). If you want to know what Special Master Ball thinks about lawyers who refuse to become engaged in the area of technology, you will be interested to hear what he says about learning Mandarin or the Rule against Perpetuities!
The role of a Special Master or Court appointed expert is an interesting concept. It seems to work in the US and perhaps we can learn something from that experience in our own jurisdiction.
And Craig Ball? He may not be Master of the Universe, but he is certainly a Special Master, whatever anyone says!