What is a Special Master anyway?

All federal courts have the power to appoint a Special Master (or as it is known in Florida state courts Special Magistrate) to assist with reviewing and deciding discovery in contentious cases. Rule 53 of the Federal Rules of Civil Procedure governs the appointment of masters in federal court usually, but not always, with consent of the parties. In our state court, it is found in various procedural rules and Florida Statutes that empower judges, as well as bodies like county commissions, to obtain assistance in deciding matters. Many federal and state court judges use masters and likely more will do so in the future. Because of their substantial caseloads, many federal district judges and their assigned magistrate judges do not have sufficient time for the tasks inherent in the administration of complex, multi-party, and class action cases. Judges need to conserve and preserve their time to rule on pretrial matters and to try cases. With demanding dockets and tight court budgets, judges turn to skilled neutrals for help in getting the parties relief. These special court appointees usually come with specialized knowledge and are ordered to perform a broad or limited scope of duties such as monitoring discovery, resolving time-consuming disputes, helping with complex E-discovery problems involving electronically stored information (ESI) (typically in high-stakes cases involving employment, intellectual property, products and technology), and coordinating multi-party and multi-district litigation (MDL) cases. A Special Master can markedly reduce the burden on a judge and the court’s administrative staff. When assigned to a case, I routinely review the potentially relevant discovery in camera and provide the court with findings or recommendations regarding the legal status and factual nature of the information. Parties and lawyers recognize that the appointment of a master can save them substantial fees and costs, and can lead to a much quicker resolution of their disputes. Sophisticated parties who regularly use professional and experienced masters know how valuable we can be to expedited case handling and in getting quicker resolution. See more here-- https://bit.ly/3AJ6j2r

Special Master Orders Briefs in Water Wars

This week, the U.S. Supreme Court-appointed Special Master of the so-called Water Wars, Honorable Paul J. Kelly, Jr., set a January 31, 2019 deadline for initial briefs and a February 28, 2019 deadline for reply briefs. Judge Kelly denied Florida’s request for additional evidence-gathering in the case before he will make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia. He found additional discovery would only lengthen the proceedings, delay the outcome and increase litigation costs, citing a voluminous record in the case from unlimited discovery and lengthy prior trial. Florida still seeks the cap on consumption that would alleviate past damage allegedly caused by Georgia. Future proceedings will weigh Georgia’s claims that any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry in southwestern Georgia. This blog has followed the Water Wars for years in other entries. Florida ultimately seeks to limit Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin, including Lake Lanier, to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. See more here-- https://bit.ly/2JSm4cj and here-- https://bit.ly/2FcOGP6

No More Business Court? Use a Special Magistrate!

This month in Orange County, we saw the demise of the state's first "Business Court" due to lack of adequate funding from the state legislature which allocates less than one percent of Florida's budget to the judiciary. Known as the Complex Business Litigation Division of Circuit-Civil, this specialized court helped determine thousands of cases in its 15 year history through the use of its own rules and active case management by its presiding judges. Mediators with commercial experience also helped dispose of many a case upon referral. Now that these cases have been reassigned to the General Civil Division, they will likely have to wait to be decided among thousands more general cases already on those dockets. Ninth Judicial Circuit Chief Judge Fred Lauten spoke on this at our recent Orange County Bar Association Judicial Relations Committee meeting and is in the midst of a public relations campaign to encourage citizens to ask their elected officials to secure more funding next session. Judge Lauten has commented that "with a growing population and a base constituency of 1.7 million people, the Ninth Judicial Circuit has been operating at maximum effort with minimum resources for years. Despite a caseload that has qualified the circuit for additional judges every year since 2006, no new judgeships have been allocated. While an ever expanding workload coupled with chronically insufficient resources would spell a reduction in services for most agencies and businesses-- the judiciary is not afforded that option, nor should it be." As such, the business judges were moved to the fill a bigger need in the growing Family Division. Still, there remains an option to litigants to have their cases heard before a skilled neutral or Special Magistrate, by consent. Special Magistrates in state court (formerly known as Special Masters which they are still called in federal court) can timely assist burdened trial judges in the disposition of complex cases. Carefully drafted orders of referral under Rule 1.490 of the Florida Rules of Civil Procedure that anticipate the scope of issues to be decided, such as discovery disputes, can do much to make the utilization of Special Magistrates effective and cost-efficient. Having served the Circuit-Civil Division in culling cases during 2013 as a General Magistrate, I recently offered to serve as a hired Special Magistrate where parties so desire. See more in newspaper opinion piece here-- https://bit.ly/2mykykR

Anniversary of E-Discovery Amendments

Today marks one year since significant changes were made in 2015 to the original 2006 federal rules on electronic discovery. Federal Rule of Civil Procedure 26(b)1 now emphasizes proportionality and seems to have influenced determining the expense or burden of proposed discovery in a more realistic way. The advent of technology assisted review has also brought costs down and is being employed more frequently by parties and is accepted and even encouraged by courts. My role remains as E-neutral, mediator or sometimes court-appointed special master to facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature private caucuses with retained experts or information technology liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding sanctions and unpredictable judicial outcomes. Cooperation using alternative dispute resolution may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawbacks or agreed confidentiality orders. Rule 37(e) improved the safe harbor for mistakes in deletion, recognizing the volume of data generated is ever increasing and has made preservation more challenging. Sophistication of the parties is still taken into account in reasonable steps taken to initiate holds, but a lawyer's duty of competence in technology in more important than ever. Our E-Discovery & E-Neutral Services can help in that area, providing assistance by hosting Meet and Confer sessions, facilitating cost effective, mutually cooperative, and relevant ESI programs-- even in state court, with Mediated Case Management or Pretrial Stipulations under Florida Civil Rules 1.200 or 1.201. As Special Magsitrates, we are available to monitor E-discovery compliance or perform complex in-camera reviews for which judges don't have time. See more here-- http://www.uww-adr.com/services/e-discovery-and-e-neutral-services/index

Special Master Services Streamline Discovery

Having chaired the effort to amend the Florida Rules of Civil Procedure to include Electronically Stored Information (ESI), I often remind courts, counsel and litigants that neutrals are now an available avenue to resolve electronic discovery disputes. We are prepared to serve as Special Masters (Special Magistrates under the Florida Rules of Civil Procedure) to assist in e-discovery issues in state and federal matters, including: hosting federal Rule 26 “Meet and Confer” sessions; facilitating cost effective, mutually cooperative, and relevant e-discovery programs; procuring Mediated Case Management or Pretrial Stipulations under Florida Rules 1.200 or 1.201; monitoring discovery compliance and outcomes, and adjudicating legal or technical disputes if necessary. In given cases, by agreement, we neutrals can also serve as “e-discovery mediators” or E-Neutrals to conduct negotiated settlement discussions to resolve issues relating to identification, preservation, collection, review, and production of ESI. Early, proactive involvement of an e-discovery special master or mediator educated in the realm of electronic discovery may yield immediate benefits in both the efficiency and economy of litigation, keeping the discovery process on track to producing the best information available for trial or settlement. Our firm just finished a team in camera review of multiple thousands of documents hosted on kCura's Relativity 9 platform for the Complex Business Litigation Division of the Ninth Judicial Circuit Court in Florida, where I once served as a General Magistrate under Chief Judge Belvin Perry. These efforts are cost effective and can save time, as well as aggravation of the judicial officer who will later rule on dispositive motions and preside over the case. See more here-- http://www.uww-adr.com/services/e-discovery-services

Join me for the Masters Conference NYC

Please join me this month as I've been invited to speak about streamlining electronic discovery at the Masters Conference for Legal Professionals on Tuesday, July 21, in New York City. Having chaired the recent effort to amend Florida Civil Procedure Rules to include e-discovery and previously taught for the state’s Advanced Judicial College, I'll join other industry experts in taking attendees through the life cycle of a complex case. We'll be focusing on fixing problem areas for a more cost-effective approach in a panel discussion titled “How to Streamline E-Discovery,” which runs from 11 am to noon. All eight of the conference’s sessions will take place at New York’s famed Harvard Club. The conference will concentrate on e-discovery, data protection, records management and related topics. “Whether you’re dealing with e-discovery in a new, socially networked world, find your company expanding globally and thus facing international discovery issues, or planning for the future of e-discovery in your firm or company, you know there’s a divide between what is in practice today and where your firm needs to be in the near future,” according to conference organizers. “Legal professionals must develop strategies for spanning this e-discovery divide before it expands further across traditional borders, whether physical or technical.” My emphasis will be on avoiding discovery disputes in the courts through the use of E-Neutrals, Mediated Case Management and Special Masters in culling the universe of information available to parties, in order to let them focus back on the merits of the claims and defenses. For more information about our panel at the Masters Conference, please visit-- http://themastersconference.com/agenda/how-streamline-ediscovery and for the full agenda in New York, see-- http://themastersconference.com/events/new-york-city

E-Discovery Challenges Can Be Overcome Through Mediation

According to a recent article in Law Technology News by William Hamilton, Executive Director of University of Florida's E-Discovery Project, United States Magistrate Judge John Facciola of the District of Columbia-- with whom I've had the honor of serving together with as a panelist at last year's Innovate conference-- presented on coming changes at last week's Fall 2014 Distinguished Lecture. Judge Facciola opined that E-Discovery cooperation is designed to address the problem of asymmetrical attorney competence. Transparency, he said, is consistent with advocacy and competency. Failures often occur when less sophisticated practitioners make incorrect representations to the court and opposing counsel. A lack of transparency can be cover for incomplete preparation and research about the case and the relevant ESI. According to the article, Judge Facciola also said discovery disputes are a cry for help. As such, a new mode of case management that aggressively intercedes early in the case can address electronic discovery challenges. With aggressive case management, failure may be averted according to the judge. Similarly, E-Neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus a confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-Discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. As the wise judge said, “Litigation is about something—and it is not the back up tapes." The judge, who is retiring soon, emphasized that extraordinary costs of ESI litigation are driving small companies and the middle class out of the system, “I did not become a judge to be a hall monitor in a playground where only the rich can play.” The article appears here-- http://bit.ly/1rqJL9b and the full UF presentation is available here-- http://www.law.ufl.edu/academics/institutes/icair

Upchurch Speaks on Future of Mediation

Alternative Dispute Resolution pioneer John Upchurch of the firm Upchurch Watson White & Max shared his insights on the future of mediation at the Orange County Bar's ADR Committee Luncheon CLE today in Orlando. He was appointed by the Supreme Court of Florida as a charter member of the Supreme Court Committee on Mediation and Arbitration in 1989 and has been resolving disputes ever since. Upchurch opines that injecting creativity into the process could lead to future trends including non-traditional methods in Florida such as Early Neutral Evaluation or even so-called "Night" Baseball Arbitration. He also sees a potential for growth in E-Neutral services with the advent of E-Discovery rules and the need for stronger case management. As for the more typical types of cases, recent case law invalidating caps on medical malpractice damages and the start of new construction projects should lead to more opportunities to employ ADR services in the coming year. Upchurch also commented on the effects of lack of preparation for mediation and down-streaming of cases that need settling, including more follow-up and possibly reconvening parties and counsel. Finally, a discussion was had about the use of Special Magistrates in state court, much like Special Masters in federal court, to streamline discovery and enable quick decisions in a complex case to be made without judicial intervention beyond ratification or rejection of reports and recommendations.

Settling ESI disputes with Mediators

Now that we are more than a year into Florida's E-Discovery rules, disputes over electronically stored information are coming to a head. E-neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus the confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. For example, though counsel are urged to reach a rational agreement on what must be preserved, taking into account costs and burdens incurred by modifying or suspending document retention systems can be difficult. Implementing even narrowly tailored litigation holds to preserve crucial ESI can be difficult without the assistance of an e-neutral during negotiations. Under the safeguards of a confidential mediation, limited discovery from custodians or other key persons with special knowledge of a company’s computer systems may be particularly useful. Lawyers can then self-determine sources from which relevant information is to be obtained, while the neutral facilitates agreement on the time-frame at issue, search protocols, accessibility of stored information or the cost and burden of restoring inaccessible information. An e-neutral, mediator or special magistrate can also facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature caucuses with experts or IT liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding unpredictable judicial outcomes on IT and ESI. Cooperation under this rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawback agreements or agreed confidentiality orders. If the parties reach an agreement, they may ask the court to include the agreement in their scheduling order.

New FL Ninth Judicial Circuit Biz Court Procedures

Now approaching a decade in existence, Florida's Ninth Judicial Circuit Complex Business Litigation Division or "Business Court" in Orlando specializes in handling complex business cases, such as antitrust, commercial foreclosure, intellectual property, franchise and unfair competition lawsuits. The goal is to handle business litigation matters in a more effective and efficient manner, much like the federal courts. The Business Court Procedures, known locally as the BCP, have just been revised retroactive to April 1, 2013 (in conjunction with civil division e-filing http://www.ninthcircuit.org/about/divisions/civil/downloads/ECF%20NOTICE%20final.pdf). New and notable is the requirement of attorneys who provide more than 50 pages of materials to the court for hearing preparation (typically done by the delivery of indexed binders) to provide this material now only on a USB drive. Also significant is the change to BCP 5.11(a) which requires that contested discovery motions be fully briefed unless the motion will be heard by the magistrate, or unless excused by the trial judge. The use of mediators and magistrates may be discussed the case management process, as well as in resolving ESI disputes arising out of electronic discovery. See Biz Court links here-- http://www.ninthcircuit.org/about/divisions/civil/complex-business-litigation-court.shtml and revised BCP http://www.ninthcircuit.org/about/divisions/civil/downloads/Business-Court-Procedures.pdf

Save the Date (5/14) for E-Neutrals in E-Discovery Disputes CLE

Last fall, the Supreme Court of Florida approved proposed E-discovery rules for state cases. The court adopted amendments to case management to include ESI. The new rules will affect the state’s diverse legal community of trial attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to E-discovery. Neutral third parties, such as special magistrates (formerly masters in FL) and mediators, may be able to assist in these instances. I will be speaking in conjunction with the Orange County Bar Association's Intellectual Property and Technology Committees who are presenting an afternoon CLE called "Florida's New E-Discovery Rules and Best Practices for All Cases: Taming the ESI Beast," on May 14, 2013 in Orlando. My topic before joining a panel on best practices is entitled, "Using E-Neutrals to Limit the Cost of E-Discovery." For the uninitiated, “E-neutrals” can help shape discovery plans, allocate costs and suggest and create efficiencies that may not have existed in litigation. Our services are not limited to grappling with old or new rules, or to discovery disputes. The course description states, "Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar subcommittee that drafted these rules. In his CLE, he will present how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. The course material quotes me: “In resolving these issues, I focus parties on the merits, rather than using E-discovery as a sword or shield,” states Kolin. “Mediation of ESI disputes is an avenue that can present parties with significant cost-savings through self-determination, if performed early enough in the litigation.” I hope you will join me! Contact Marie West-- mariew@ocbanet.org for registration or see http://orangecountybar.org/calendar.asp for more information.

Supreme Court of Florida Considers E-Discovery Rules

In a development that may lead to the use of more special magistrates and special masters deciding discovery disputes, this morning, the Supreme Court of Florida heard oral argument in case SC11-1542 on the amendments to the Florida Rules of Civil Procedure concerning E-Discovery. The proposed amendments add electronically stored information or ESI into existing rules and are mostly modeled on the federal rule changes implemented by Congress in 2006. Following a multi-year effort by the Civil Procedure Rules Subcommittee on E-Discovery that I formed in January 2006, these rules were presented to the Florida Bar Board of Governors and sent on to the court for comment and adoption. Justice Barbara Pariente, with her iPad prominently displayed on the bench, began to pepper Chair, Kevin Johnson (whom I tapped as my successor upon my terming off the Civil Rules standing committee) shortly after he began. She engaged in congratulating the seemingly unanimous approval by the members of the Bar in the run-up to making these rules official. Justice Pariente continued with questions regarding her experience as a litigator in producing documents in products cases. Mr. Johnson explained that the only difference from the federal rules is the lack of a mandatory meet and confer early in the case. However, there is an available category found in the state case management rules 1.200 and 1.201. Justice Quince was concerned over the format of production of the items requested by a litigant and that those decisions are left to the trial judge. Justice Perry was concerned about the party having the best expert to hide the ball with an inexperienced line judge. Doug Caldwell of the Rumberger firm appeared to applaud the effort, but on behalf of the Florida Defense Lawyers, did not feel the federal rules go far enough. He cited efforts in the federal rules advisory committee to remedy the inefficiencies experienced in that system. Mr. Caldwell echoed Henry Trawick’s comments filed about the burden on the producing party. His anecdote of a ‘mom and pop’ store with an iPhone was met with skepticism from Justice Pariente. Justice Polston pointed out the existing rules allow for trial judges to argue scope in 1.280. Retired Circuit Judge Ralph Artigliere, with whom I’ve taught at OSCA’s Florida Judicial College, commented on preservation and the existing case law for spoliation that developed out of products and malpractice cases. He added that Business Courts can make local rules more specific to manner of production. He also mentioned the change in culture reflecting a burden on lawyers to understand the evidence their clients may have and responsibility to the court, Education of the bench and bar was discussed and Justice Lewis went as far as talking about mandatory court education or bar CLE to be coordinated by the budget-less Civil Rules committee. Not a clue as to the timing of implementation of these rule amendments was given during the thirty-seven minute argument, though I liked Justice Pariente's emphasis on wide agreement of committee and bar to pass rules. Fingers crossed! See complete oral argument at: http://wfsu.org/gavel2gavel/archives/flash/viewcase.php?case=11-1542