Having recently transitioned from being a litigator to serving as a discovery neutral, I've gained a distinct perspective on the role of discovery neutrals in our legal system. This experience has highlighted both the challenges these appointments can present and the opportunities they offer for efficient dispute resolution.
The Legal Framework
Federal Law: Special Masters
Rule 53 of the Federal Rules of Civil Procedure (FRCP) governs the appointment of special masters in federal courts. The rule permits appointment for various purposes, including discovery. The scope of a special master's authority must be specifically defined in the appointing order, and the master must file reports and make recommendations as specified by the court.
Under Rule 53(f), the court must review de novo all objections to findings of fact and conclusions of law made or recommended by a master unless the parties, with the court's approval, stipulate to a different standard, such as clear error review. The court reviews procedural matters for abuse of discretion. This rigorous review process, combined with the federal courts' single-assignment system, often leads to more effective oversight of the special master process. Because federal judges retain direct responsibility for case progress under the single-assignment system, they tend to maintain active supervision over special masters' activities and ensure efficient resolution of disputes.
California Law: Discovery Referees
California Code of Civil Procedure (CCP) § 639(a)(5) provides for court appointment of discovery referees. (Other provisions of §§ 638-639 govern appointment for other purposes and by consent of the parties.) Under this framework, courts may appoint referees to hear and determine discovery motions and disputes relevant to discovery matters. The referee's recommendations are advisory unless the parties stipulate otherwise, with the court retaining ultimate authority over the decisions.
In California state courts, the standard of review for a discovery referee's recommendations is essentially de novo, as the recommendations are advisory only. However, courts generally give considerable weight to the referee's findings, particularly on factual matters. The process can be less efficient than in federal court, in which close oversight of special masters is prescribed by rule and the single-assignment system facilitates that oversight. When cases rotate among different judges, as often occurs in state courts, consistent oversight of discovery disputes becomes more challenging, potentially reducing the effectiveness of the referee process.
The Litigator's Perspective: Challenges With Discovery Neutrals
As a practicing litigator, I often found that the appointment of a discovery neutral, while well intentioned, could lead to unexpected complications:
- Increased costs: The addition of a private neutral not only meant paying for their time, but also often led to an expansion of motion practice. Parties seemed more inclined to file discovery motions when a dedicated neutral was available to hear them.
- Procedural inefficiencies: Many neutrals would request supplemental briefing, extending timelines and adding to costs. The process could become more formal and bureaucratic than necessary.
- Delay through appeals: The multi-tiered review process—from neutral to judge—often resulted in delays as parties sought review of unfavorable recommendations.
- Lack of consequences: Despite rules allowing for sanctions, many neutrals seemed hesitant to penalize parties for taking unreasonable positions, leading to a proliferation of marginal disputes.
A New Perspective: Serving as a Discovery Referee
My recent appointment as a discovery referee gave me the opportunity to address these concerns directly. Drawing from my experiences as a litigator, I've adopted several principles to enhance the efficiency and effectiveness of the process:
Key Principles for Effective Discovery Dispute Resolution
- Avoid supplemental briefing: The initial submissions should contain all necessary information. Additional briefing rarely clarifies issues and delays resolution.
- Rapid decision-making: Quick turnaround on decisions helps maintain case momentum and reduces overall costs. Parties deserve prompt resolution of their disputes.
- Adherence to the rules: The CCP provides clear guidelines for discovery. In the federal system, the combination of the FRCP and prior court decisions provides cogent guidance. Maintaining fidelity to these rules and decisions creates predictability and fairness.
- Meaningful consequences: When a party takes positions without substantial justification, the FRCP and the CCP provide for sanctions. Judicious use of this authority helps discourage frivolous disputes.
The Benefits of This Approach
This streamlined approach has yielded several benefits:
- Reduced costs: By eliminating supplemental briefing and deciding matters promptly, parties save on both neutrals’ and attorneys’ fees.
- Faster resolution: Quick decisions keep cases moving forward.
- Better behavior: The realistic prospect of sanctions encourages parties to take reasonable positions.
- Predictability: Strict adherence to the FRCP and CCP creates clear expectations.
The role of discovery neutrals need not expand costs or create delay. By maintaining focus on efficiency, adherence to rules and appropriate consequences for unreasonable positions, discovery neutrals can fulfill their intended purpose: facilitating fair and efficient resolution of discovery disputes. My transition from advocate to neutral has shown that maintaining efficiency and decisiveness is key to successful dispute resolution, regardless of the judicial framework.
