E-discovery requires extensive resources and imposes significant costs, oftentimes just to locate the few relevant documents. Both sides are always looking for the “smoking gun” that is going to tip the scale of the case in their direction.
A special master for electronically stored information (“ESI”) can help the process by fairly, effectively, and with cost-efficiency giving each side the fairness required and increase the chances that if there is a smoking gun e-mail or documents, they can be located.
Yes, a special master often does the things that a judge assigned to a case can do if the judge has the time and technical expertise to do so. But, oftentimes the judge does not have such time to either do so or educate oneself on the technical aspect.
So why an ESI special master? The special master’s goal is to allow the parties to focus on the merits and be more confident the e-discovery process will achieve a prompt and cost-effective goal of locating those documents needed by the parties to mediate or try their case.
Here are some of the reasons:
- Less costly than using an e-discovery consultant. Also, if one weighs the costs to bring the matter to the attention of the court against a flat fee or alternative fee negotiated with an ESI special master, the cost savings can be significant.
- The ESI special master can deal with privileged, proprietary, confidential information or privileged documents.
- The ESI special master can “size” the e-discovery process to fit the needs of the parties and avoid unnecessary cost and time spent.
- The ESI special master can act as a mediator to find consensus when needed.
- An ESI special master can help the parties to cooperate as opposed to having a litigation battle. Battle costs money, and clients are not interested in spending money on attorneys, outside third parties, or staff sifting through pages and pages of documents with no relevant purpose.
- With today’s technology and search terms agreed upon with the ESI special master, prompt and cost-effective results can be achieved much quicker. The ESI special master can help the parties focus on the facts and, if necessary, become a mediator to get both sides on the same e-discovery plan.
- The ESI special master can also deal directly with the technical fields to foster dialogue and eliminate the “let’s not give you what you want; you didn’t ask for that.”
- If there are spoliation issues, the special master can address those issues and resolve them before one side starts talking about sanctions. The ESI special master can find ways to help “fix” the issue before it becomes a major problem.
How to get started with an ESI special master: Ask the court for an Appointment Order. A sample form of an Appointment Order is here. Prior to the ESI special master being selected, work out with the ESI special master a reasonable hourly fee or alternative fee arrangement.
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