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The Use Of Special Masters In Complex Cases
By Shira Scheindlin
Law360, New York (August 15, 2017, 11:36 AM EDT) --
In the years that I served as a United States district judge, I frequently appointed
special masters and made such appointments in a variety of contexts. Although
some judges are fans of using special masters, many others have never done so.[1]
This is unfortunate. It is my firm view that these appointments are very beneficial in
resolving disputes quickly, streamlining discovery, handling delicate settlement
negotiations, and — somewhat surprisingly — reducing cost and delay.
I begin by recalling the appointments I made over the years. I appointed settlement
masters in several cases where I knew that settlement negotiations would be
protracted and difficult, requiring a time commitment that a judicial officer would
be unable to spend.[2] I also appointed discovery masters in several cases, in two
distinct scenarios. The first was where discovery issues would recur with alarming frequency or required
particular expertise.[3] In these instances a special master was particularly useful in being available on
short notice, familiar with the case from prior disputes, and generally able to rule quickly because he or
she was not burdened with other courtroom commitments. The special expertise to which I just referred
often involves issues surrounding e-discovery. Modern search techniques may be more familiar to experts
than to the court or the attorneys. Having a special master with expertise available to help has been
extraordinarily useful to the parties. I made such an appointment in a very complicated case involving
document requests under the Freedom of Information Act served on several federal agencies that
involved millions of documents,[4] and I am aware that several other judges on the court have also made
appointments of special masters with expertise in this area.[5] The second circumstance often involved
burdensome privilege reviews, which cannot reasonably be handled by a busy district judge or magistrate
judge, and surely not by a justice sitting in the Commercial Divisions in New York state courts.[6] A special
master who is experienced in the law of attorney-client privilege and work-product protection is ideally
suited to quickly review a sample, make preliminary rulings by category, and move the parties toward
resolving the remaining claims of privilege or protection.
I also appointed special masters in other circumstances — ones that do not occur as frequently as
settlement or discovery but where the appointment helped to move the litigation forward in a prompt
and cost-effective manner. I appointed a special master to distribute funds to claimants in a case that had
a large settlement fund that needed to be fairly distributed to qualified applicants,[7] and in another case
appointed a former bankruptcy judge to resolve disputes during the claims administration process in a
securities fraud class action.[8] I also appointed a special master to supervise a disputed union election
Shira Scheindlin
