Image: Holley Robinson, EDRM.
The Hon. James “Jay” Francis IV appointed Special Master in UMG Recordings, Inc. v. Uncharted Labs, Inc.
In UMG Recordings, Inc. v. Uncharted Labs, Inc., 2024 WL 4986962 (S.D.N.Y. Dec. 5, 2024), the parties could not agree to an ESI Protocol. The Court appointed the Hon. James C. Francis (ret.) as a special master to bring the ball across the goal.
The UMG court wrote: “The Special Master is needed. Several portions of the proposed protective order and ESI protocol remain in dispute, and the parties must come to an agreement as to a final proposal, negotiated with the help of a Special Master. The special needs of this case are too much to be managed and addressed effectively and timely by me, or by a magistrate judge, without the help of a Special Master.”
The Special Master is needed. Several portions of the proposed protective order and ESI protocol remain in dispute, and the parties must come to an agreement as to a final proposal, negotiated with the help of a Special Master. The special needs of this case are too much to be managed and addressed effectively and timely by me, or by a magistrate judge, without the help of a Special Master.
UMG Recordings, Inc. v. Uncharted Labs, Inc., 2024 WL 4986962 (S.D.N.Y. Dec. 5, 2024).
Judge Francis was given three tasks. First, His Honor was to assist the parties in negotiating an ESI Protocol. Second, he was to assist settlement efforts. Finally, he was to provide other assistance in reaching a speedy determination of the lawsuit. Id. at *1.
The UMG court explained: “The purpose of the Special Master’s involvement is not to resolve disputed issues of fact or law, but to assist with the matters described above, and otherwise to facilitate this matter’s efficient and just progress. Without the help of the Special Master, neither plaintiffs nor defendants will be able to time-efficiently complete this task, unnecessarily delaying justice.”
The court expressly permitted ex parte communications with the parties counsel. When I was a Court Appointed ESI Discovery Supervisor for ESI Protocol (Sep. 13, 2024), I found that permission to be especially useful.
The UMG court authorized the special master to employ additional assistance, and: “The cost and expenses of the Special Master’s services shall be divided equally between the plaintiffs and the defendants, with plaintiffs bearing half the cost and defendants bearing half the cost. The Special Master shall be compensated for time reasonably expended in connection with this matter at the rate of $950 per hour and for any reasonably necessary out-of-pocket expenses, to be totaled monthly and promptly paid by the parties.”
Judge Francis authored “Cost-Shifting in E-Discovery,” which was published in M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011). He discussed “a common law of cost shifting….”
I have long favored Mediation of ESI Disputes; Application of Phil Favro & Judge Peck’s Lessons on Search Design (Oct. 5, 2024); JAMS: “Mediating E-Discovery Can Save Time and Money” (Dec. 23, 2023).
The ABA has suggested use of the term “court-appointed neutral” instead of the word “master,” due to the historical context of the latter. No More “Masters”? (Feb.16, 2024).
