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. 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. 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. 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, and I am aware that several other judges on the court have also made appointments of special masters with expertise in this area. 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. 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.

Originally published in Law360 on August 15, 2017.