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Special masters in e-discovery

A special master is a person who is appointed to stand in the shoes of the judge to deal with a special circumstance regarding a unique issue.

He or she is someone with skills mix of a judge and expert in a given field. You want someone who understands the legal issues as well as specific technical issues to be able to explain to all parties in an objective way.

For example, if a case involves digital evidence, and the two parties to the case have their own ‘experts’ who seem not to agree, there may be need for an independent special master – – someone with special skills and understanding of the technical issues at hand.

Whenever there is an issue that is so specialized, where the court is throwing its hands that I have two technical people who are giving untenable positions, giving a lot of time wastage. You have a lawyer who may not have much knowledge about the subject of computer forensics. Such a case calls for the need of special master who can speak for the court. Someone who can ask questions that can elicit the right answers and understanding of a technical issue being presented with an aim of removing communication break-down.

How does an ESI special master gets involved in a case?A special master will either be brought in by the court. The court may then ask for the recommendation for the parties. The parties may recognize early on for the need for a specialized resolution and may have to bring in a special master so as to save time and ensure expeditious conclusion of the case.

Another role a special master can have the master to do some special tasks, e.g. computer forensics. But also a special master needs some legal training and neutral status to respect confidentiality of personally identifiable information.

You may be called in by court to assist explain the technical issues. Usually, court has special rules and guidelines for appointment of a special master as long as both parties understand the master or the expert.

Parties to the case can agree to have the master come in to assist anytime they need an independent expert.

Credit: Interview with Craig Ball, digital forensics special master

To be continued.

Mustapha B Mugisa, CFE 2014. All rights reserved.

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