Revisions in Federal Rule 53 Provide New Options for Using Special Masters in Litigation B Y S HIRA A. S CHEINDLIN AND J ONATHAN M. R EDGRAVE under Rule 53’s unified procedure, different standards T he modern practice and use of special masters in governed the use of masters in jury and non-jury pro- federal courts gradually evolved from a strict and ceedings. In both types of cases, Rule 53 continued to limited role for trial assistance prescribed by Fed- provide that appointment of a special master “shall be eral Rule of Civil Procedure 53 to a more expanded the exception and not the rule.” 4 view, with duties and responsibilities of masters ex- tending to every stage of litigation. Recognizing that S HIRA A. S CHEINDLIN is a U.S. District practice had stretched beyond the language of the long- Court judge in the Southern District of standing rule, the Advisory Committee on Civil Rules New York, a member of the Advisory undertook an effort to conform the rule to practice. Committee on Civil Rules (1998–pres- ent), and a former chair of the Rule 53 The result is a new rule, effective as of December 1, subcommittee. She practiced at the 2003, that differs markedly from its predecessor and sets New York law firms of Herzfeld & forth precise guidelines for the appointment of special Rubin and Stroock, Stroock & Lavan, masters in the modern context. In general, the changes and served as chair of the NYSBA’s provide more flexibility in the use of special masters, Commercial and Federal Litigation permitting them to be used on an as-needed basis with Section. She has also been a member of the judicial panel of Endispute and served as assistant U.S. attorney in the the parties’ consent or by court order when exceptional Eastern District of New York, including assignments as conditions apply. administrative assistant U.S. attorney and as deputy This article reviews the history of Rule 53, the evolu- chief of the Economic Crimes Unit. She was also general tion of the use of special masters in practice, and the sig- counsel of the Department of Investigations of the City nificant new provisions of Rule 53. of New York. She graduated from the University of Michigan, received a master’s degree from Columbia Historical Rule and Purpose University and her J.D. from Cornell Law School. The practice of appointing or referring matters to a J ONATHAN M. R EDGRAVE is a partner special master predates the adoption of Rule 53. Before with the firm of Jones Day in its it was enacted, federal courts relied on precedent and Washington, D.C., office. His litigation their inherent authority to appoint and define the duties practice includes the management of and responsibilities of masters in law and equity cases. 1 complex litigation, and he has been in- This authority and practice were formally recognized volved in tobacco cases, insurance coverage litigation, appellate matters, and codified in the Federal Equity Rules of 1912. The re- and general business litigation. He is visions to federal equity procedure memorialized in the a member of the Advisory Board of Equity Rules severely curtailed the use of masters, man- the Sedona Conference and the Board dating that a reference to a master, save in matters of ac- of Editors of The Federal Lawyer , the publication of The count, was to be the “exception, not the rule” and was Federal Bar Association. He previously practiced law in permitted only upon a showing that some “exceptional Minneapolis, Minn., with the firm of Gray, Plant, Mooty, condition” required it. 2 Mooty & Bennett, P.A. He graduated from the University of Notre Dame and received his J.D. from the University The restrictive provisions of the Equity Rules were of Minnesota Law School. incorporated into the earliest Federal Rules of Civil Pro- The authors wish to thank Steven Fredley, an associate cedure in 1938 in the form of Rule 53. 3 Yet while the sub- with Jones Day, for his assistance in preparing this article. stantive provisions of Rule 53 were similar to the equity procedures, Rule 53 eliminated, as did the Federal Rules Reprinted with permission from the New York Sate Bar Association of Civil Procedure in general, the distinction between Journal , January 2004, Vol. 76, No. 1, published by the New York State Bar Association, One Elk Street, Albany, New York 12207. law and equity that previously existed. Accordingly, 18 Journal | January 2004
work.” 14 Finally, the Court declared that the duration of Rule 53 envisioned a rather limited role and purpose for masters. Located in the trial section of the Federal a trial did not “offer exceptional grounds.” 15 Rules, Rule 53 focused primarily on a master’s use as a The structure of Rule 53 and the Supreme Court’s de- trial master, i.e. , hearing trial testimony and reporting cision in La Buy significantly limited the use of special recommended findings of fact. In the context of jury masters. The “exceptional condition” requirement was hard to meet, 16 especially in cases where one party did cases, “a reference shall be made only when the issues are complicated.” 5 In analyzing whether a reference to a not agree that a special master was advisable, and thus master was appropriate, courts considered whether the reported use of Rule 53 was limited. Even so, changes in master would assist the jury in reaching a resolution, in the volume and complexity of civil litigation gradually many ways like a fact expert for the jury. 6 The master brought about an increased use of masters at every stage had the authority to conduct hearings, require the pro- of litigation. duction of evidence, rule upon the admissibility of evi- dence, examine witnesses, 7 and was required to submit Modern Use and Practice a report setting forth findings of fact. 8 The master’s re- By the end of the 20th century, the use and practice of appointing special masters had grown beyond the lan- port was then presented to the jury as admissible evi- dence that the jury could consider. 9 guage and design of Federal Rule of Civil Procedure 53. Unlike the original conception of the rule as a special- In non-jury matters, Rule 53 provided that “save in ized device to assist the jury in fact analysis, a master’s matters of account and of difficult computation of dam- role in complex litigation ages, a reference shall be grew to include overseeing made only upon a showing References of discovery and complex and voluminous that some exceptional con- discovery issues, as well as dition requires it.” 10 discovery disputes have been seen implementation and en- The limitations of the as particularly useful because of forcement of post-judgment original Rule 53 and the use orders and decrees. Courts their time-consuming nature or of masters in general were that used special masters in clarified by the Supreme need for immediate resolution. these non-traditional roles Court in La Buy v. Howes either assumed that such ap- Leather Co. 11 In La Buy , the pointments were sanctioned Court reviewed a decision by the Court of Appeals by Rule 53 or relied on the court’s inherent authority to granting a writ of mandamus ordering the District appoint non-judicial individuals to assist the court Court to vacate an order referring two large and com- when needed. 17 plex antitrust cases to a trial master. In affirming the de- With respect to “discovery” masters, district courts cision of the appellate court, the Supreme Court identi- increasingly viewed resort to a Rule 53 master as neces- fied what considerations were insufficient to establish sary in light of increasing docket pressures and limited an exceptional condition, but it failed to define what judicial resources. 18 Masters have been appointed to considerations constituted an exceptional condition. oversee the discovery process, which can entail resolving The District Court in La Buy based its order of reference disputes, establishing procedures and schedules, moni- on the congestion of its docket, the complicated and toring document production, and attending depositions and conferences. 19 References of discovery and discovery complex nature of antitrust litigation, and the duration of the trial. The Court declared that “congestion in itself disputes have been seen as particularly useful because is not such an exceptional circumstance as to warrant a of their time-consuming nature or need for immediate resolution. 20 Factors considered in these appointments reference to a master. If such were the test, present con- gestion would make references the rule rather than the included the volume of material to be produced and ex- exception.” 12 The Court similarly rejected the District changed, 21 the scientific and technical nature of the in- formation subject to discovery, 22 and the complexity of Court’s reference based on the complexity of the issues. the underlying dispute. 23 Another important role that “[M]ost litigation in the antitrust field is complex. It does not follow[, however,] that antitrust litigants are masters have filled is resolving claims of privilege that not entitled to a trial before a court.” 13 In fact, the Court accompany document productions. 24 believed the opposite to be true. The complexity of the The increased use of special masters under the existing field of law, the Court reasoned, was “an impelling rea- framework of Rule 53 created a tension with the need to son for trial before a regular, experienced trial judge ensure that the role of masters remained limited. For ex- rather than before a temporary substitute appointed on C ONTINUED ON PAGE 21 an ad hoc basis and ordinarily not experienced in judicial Journal | January 2004 19
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