Advantages and disadvantages

8.4 A number of commentators have expressed a desire for the introduction of ‘special staff to manage discovery issues in large cases’.^[1]In this chapter, these persons will be referred to as ‘special masters’ or ‘discovery masters’ (although this is not meant to imply they should necessarily be officers of the Court). ‘Referees’ will only be used for persons to whom matters are referred under s 54A of the Federal Court of Australia Act.

8.5 Many of the arguments for and against the use of ‘special masters’ also apply to the use of Federal Court registrars for discovery work. This chapter considers whether registrars might perform this work, if circumstances suggest that someone other than the docket judge should help to manage discovery.

8.6 The work given to a registrar, special master or referee depends partly on the model chosen and on the Court’s jurisdiction to delegate, but might include:

• making discovery orders;
• working with the parties to prepare a discovery plan;^[2]
• reporting on specific findings of fact, such as where documents are stored;
• recommending technology to use for locating and retrieving electronic data;
• arbitrating on specific discovery questions;^[3] and
• imposing sanctions.

8.7 Concerning these last two points in particular, it should be noted that ch III of the Australian Constitution precludes anyone other than a judicial officer from exercising judicial power, but this does not necessarily preclude the appropriate delegation of certain powers and functions, particularly if the judicial officer maintains the control and supervision of the powers and functions.^[4]

Advantages

8.8 Those in favour of the use of special masters or referees for certain discovery work highlight the time, knowledge and expertise such a person can bring to the discovery process. In the United States (US), judges ‘are increasingly appointing special masters to address issues related to electronically stored information’.^[5]

8.9 One example of a task said to be too time-consuming for a judge to undertake is ‘reviewing vast numbers of documents in camera—sometimes in the tens of thousands of pages—to determine whether privilege has been validly asserted’.^[6] Another is the detailed, technical work that may be necessary to prepare discovery plans for complex cases.

8.10 A special master may not only have more time than the court to focus on certain discovery questions,^[7] but by doing this work, may save the court considerable time in the long run. The VLRC argued that special masters would help ‘free up judge time, which may otherwise be consumed by complex and protracted discovery processes’, and so save on public resources.^[8] The Hon Justice Ray Finkelstein said that it was:

unfair to other judges, and to other litigants with cases before that judge, when the judge must devote a disproportionate amount of time to one case, and even close his or her docket in extreme cases.^[9]

8.11 The VLRC also argued that using special masters may help preserve the neutrality of judges, as ‘the use of special masters will greatly assist the court to adopt a more interventionist approach to discovery, without compromising judicial objectivity and independence’.^[10]

8.12 One US District Court judge has argued that some disputes require a panel of professionals—such as investigators, accountants, economists and computer experts—working in a coordinated manner to gather information. In such situations, the judge argued, a special master may act as a ‘project manager’ to coordinate these professionals.^[11]

8.13 There are similar advantages to using Federal Court registrars to work on discovery.

Judge should manage the case

8.14 A key concern with the introduction of special masters in the Federal Court may be its impact on the Court’s docket management system. In the Federal Court, each case is allocated to the docket of a judge who is then responsible for managing the case until final disposition. The docket judge’s familiarity with the case is intended to promote the just, orderly and expeditious resolution of disputes.^[12] Outsourcing case management to a master may detract from the judge’s involvement and familiarity with cases in his or her docket and the Court’s overall responsibility to facilitate the resolution of the dispute through active and robust case management.

8.15 There may also be concerns that the use of a special master may add a layer to the discovery process, thereby creating inefficiency, particularly if the Court must revisit in detail all the facts and recommendations contained in a special master’s report, and also hears extensive objections from the parties.

8.16 Submissions to this Inquiry discussed these and other advantages and disadvantages of using special masters for discovery work. These submissions will be considered later in the chapter.

Review of Civil Litigation Costs (UK)

8.17 Lord Justice Jackson reported strongly opposing views—views echoing those expressed in submissions to this Inquiry—about the use of ‘disclosure assessors’ in ‘document heavy’ cases:

Some respondents consider that this is a very bad idea, which will add another layer of costs to no useful purpose. They argue that controlling disclosure is a judicial function, no part of which could be sub-contracted. Others take a more sanguine view. The London Common Law and Commercial Bar Association considers that this is ‘a very good idea and could be enormously helpful in substantial cases’. In a client survey carried out by Herbert Smith LLP, respondents (59%) supported the use of disclosure assessors for ‘heavy’ cases. The Law Society takes an intermediate view on this issue: ‘The use of disclosure assessors would be likely to increase costs considerably—though it might also result in significant savings in trial costs. It could usefully be piloted before a view was taken.’^[13]

8.18 Lord Jackson made no recommendation about disclosure assessors, but concluded:

If the device of disclosure assessor is tried out on a voluntary basis and proves to be effective in saving costs in ‘heavy’ cases, then consideration could be given to providing for this as an option in the rules. Before making any such reform to the [Civil Procedure Rules]on a future occasion, it would be necessary to gather up to date information about the US experience of magistrate judges and special masters supervising discovery.^[14]