The Use and Appointment
of Special Masters
Cary Ichter
October 11, 2013
Demand is Soaring
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Between 1997 and 2007, the total number of cases filed
in Georgia courts increased from 1,628,530 cases to
2,463,192 cases, or 834,662 more filings in 2007 than in
1997, an increase of 51.25%.
In 1997, the number of cases per 100,000 population
filed in state court was 7,812; in 2007 the number per
100,000 total population filed in state court was 9,933,
an increase of 27.15%. For each of the types of courts
tracked, there were double-digit percentage increases.
National Center for State Courts, Budget Resource Center,
http://www.ncsconline.org/wc/budget/activities/georgia.asp (last visited Oct. 6,
2009).
Don’t Expect it to Get Better
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The exploding judicial docket
The size and complexity of cases – size and
subject matter
The incentives to create controversy – someone
has an interest in delay
The courts are out-gunned – resources are
diminishing
The courts have other responsibilities – one or
two cases cannot be allowed to trump all others
What Can Special Masters do to Help?
As one noted commentator put it, “Special
masters can help redress the imbalance
that demoralizes a court that is confronted
by the squads of lawyers and masses of
data that invariably accompany major
cases.”
Wayne D. Brazil et al., Managing Complex Litigation: A Practical Guide to the Use of
Special Masters at 5 (American Bar Foundation 1983).
Empirical Results: Special Masters Help
“The work of special masters is very helpful; in
fact one judge in responding to the Federal
Judicial Center Study ‘wished he had appointed
a discovery master earlier.’ The FJC Study
shows that generally, judges appointing special
masters thought that the ‘benefits of
appointments outweighed any drawbacks.’”
Thomas E. Willging et al., Special Masters Incidence and Activity, Fed. Jud. Center at 59 (2000).
Better, Faster, Fairer
The Federal Judicial Center Study
concluded that Special Masters delivered
“better, faster, and fairer resolution of
litigation in the cases in which masters are
used, as well as . . . easing the burdens
theses cases place on the judiciary.”
Thomas E. Willging et al., Special Masters Incidence and Activity, Fed. Jud. Center at
59 (2000).
Order Appointing Master

Contents. The order appointing a master must direct the master to
proceed with all reasonable diligence and must state:

(A)
the master's duties, including any investigative or
enforcement duties, and any specific limits on the master's authority;
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(B)
the circumstances--if any--in which the master may
communicate ex parte with the court or a party;
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(C)
the nature of the materials to be preserved and filed as the
record of the master's activities;
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(D)
the time limits, method of filing the record, other
procedures, and standards for reviewing the master's orders, findings, and
recommendations; and
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(E)
the basis, terms, and procedure for fixing the master's
compensation pursuant to subparagraph (h) hereof.
Special Master’s Affidavit
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Entry of Order of Appointment. The court may enter
the order appointing a master only after the master
has filed an affidavit: (i) disclosing whether there is
any ground for disqualification and, if a ground for
disqualification is disclosed, after the parties have
consented with the court's approval to waive the
disqualification; and (ii) certifying that the master shall
discharge the master’s duties as required by law and
pursuant to the court’s instructions without favor to, or
prejudice against any party.
Special Master’s Authority
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Unless the appointing order expressly directs otherwise,
a master has authority to regulate all proceedings and
take all appropriate measures to perform fairly and
efficiently all assigned duties. Unless otherwise indicated
in the court’s order of appointment, the master shall have
the power to take evidence, to hear motions and to pass
on questions of law and fact within the scope of the
referral order. The master may by order impose upon a
party any non-contempt sanction, and may recommend
to the court a contempt sanction against a party and any
sanction against a non-party, including counsel for a
party.
What do Special Masters do?
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Handle all discovery issues in complex cases
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Manage ESI discovery and its myriad issues
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Hear and make recommendations on Daubert
motions
Handle class certification proceedings
Mediate settlements when agreed to by the
parties
Manage settlements in class action cases
Why Do Special Masters Help?
The only thing a Court cannot do that a
Special Master can do is . . .
GIVE EACH AND EVERY CASE THE TIME IT REQUIRES
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“This sharpened focus will beget more timely and responsive
production of requested discovery materials, will decrease the
burden upon and the cost to the producing party and will shorten
the pretrial discovery stage with commensurately foreshortened
litigation.”
Richard H. Agins, An Argument for Expanding the Application of Rule 53(b) to Facilitate Reference
of the Special Master in Electronic Data Discovery, 23 Pace L. Rev 689, 720 (Spring 2003).
An Ounce of Prevention. . .
The introduction of a special master “into the
discovery process may induce the parties to be
more cooperative because they are compelled
with an unbiased individual focused on the
discovery process, rather than with a beleaguered
judge to take note of the dilatory maneuvering.”
Richard H. Agins, An Argument for Expanding the Application of Rule 53(b) to Facilitate Reference of
the Special Master in Electronic Data Discovery, 23 Pace L. Rev 689, 720 (Spring 2003) (quoting
Robert D. McLean, Pretrial Management in Complex Litigation: The Sue of Special Masters in United
States v. AT&T, at 278 (American Bar Foundation 1983).
. . . Can Yield a Cure
“The reality is that efficiencies brought
about by special masters ultimately save
money for the parties and save public
resources.”
Thomas E. Willging et al., Special Masters Incidence and Activity, Fed. Jud. Center at 59 (2000).