Scott A. Bailey

eDiscovery Special Master

Discovery disputes related to electronically stored information (ESI) are often thought only to affect complex litigation matters. However, with the exponential growth of technology and the complexity of an inter-connected world judges and attorneys are finding that appointing an eDiscovery Special Master can help the parties resolve difficult discovery issues.

An eDiscovery Special Master offers experience in technology, software, IT security, digital forensics and eDiscovery. When a Special Master is brought in early in the discovery process they can often help resolve issues reducing burdens on the Court. The Special Master can also provide technical assist to the court and parties when issues arise late in a case.

Therefore, judges are increasingly appointing eDiscovery Special Masters to help address the technical issues related to ESI and discovery. Because each case presents unique issues, an eDiscovery Special Master can assist the court in effectively resolving technical issues that can often bog a case down.
Scott A. Bailey
Finding consensus among the parties can be elusive, and a Special Master offers the depth of knowledge and experience to ESI problems that will help the parties resolve contentious issues.

ESI Prototol and Process

Early Involvement of an eDiscovery Special Master can be instrumental in assisting the parties with the Federal Rule 26(f) “meet and confer” conference and the development of an ESI framework to ensure that the ESI process is effective and efficient. Early efforts to outline an ESI framework reduce unnecessary delays and costs associated with the ESI discovery phase of a case. The eDiscovery Special Master can assist with the following:
  • Working with the parties to draft eDiscovery orders and plans.
  • Facilitate meet & confer sessions to resolve discovery issues.
  • Assisting parties with a data map and identifying the sources and custodians of potentially relevant ESI that needs to be preserved.
  • Developing forensically sound preservation protocols or alternate preservation methods due to difficulties with certain types technologies or data locations.
  • Developing a protocol to address privilege reviews.
  • Addressing issues related to data privacy and associated requirements for data such as Personal Healthcare Information (PHI), Payment Card Industry (PCI) data, financial data, or other sensitive and confidential data.
  • Assisting with the development of the search protocol to be used, including the search criteria such as concepts, terms, assisted-review, etc.
  • Developing ESI production guidelines, including load file and metadata specifications and data delivery standards.

Additional Special Master Benefits

As a facilitator, an eDiscovery Special Master has the opportunity to assist the parties in resolving disputes related to the scope of ESI or digital forensic work and the overall methodologies utilized. An eDiscovery Special Master’s role can be tailored to assist the court and parties with specific eDiscovery or digital forensic issues. Some of the unique challenges an eDiscovery Special Master can help resolve include:
  • Monitoring compliance related to eDiscovery orders and plans.
  • Verifying a parties’ technical compliance with specific discovery requests.
  • Finding consensus with issues involving request for production and interrogatories
  • Assisting with the technical issues involving potential hiding/destruction of ESI or the use of data wiping utilities.
  • Review evidence and opine on the potential alteration of original electronic devices, ESI, or forensic images.
  • Computer source code analysis related to infringement claims.
Uncover the Facts