12.04.2011
8.24 Under r 53 of the Federal Rules of Civil Procedure, US courts may appoint masters to perform any duties to which the parties consent, including to ‘hold trial proceedings and make or recommend findings of fact’ in certain circumstances and handle pre- or post-trial issues that a judge cannot handle in a timely or effective manner.[22] Special masters are appointed by an order of the court that states the master’s duties, any limits on the master’s authority, the nature of permitted ex parte communications, how the master’s findings will be reviewed and the terms of the master’s compensation.[23] The compensation must be paid either by a party or parties or ‘from a fund or subject matter of the action within the court’s control’.[24] A master may regulate the proceedings and ‘take all appropriate measures to perform the assigned duties fairly and efficiently’,[25] and may also impose a range of sanctions.[26]
8.25 Before the court acts on a master’s recommendations, the parties have an opportunity to object.[27] The court reviews findings of fact de novo (unless the parties have agreed they will be reviewed only for clear error);[28] reviews findings of law de novo;[29] and reviews procedural rulings ‘only for an abuse of discretion’.[30]
8.26 Rule 53 contemplates the use of masters at all three stages of a trial: pre-trial, trial and post-trial.[31] At these different stages, masters may fill any of a number of different roles: settlement master; decision-making master; or case management master.[32] The settlement master attempts to mediate and facilitate negotiation.[33] A decision-making master may decide non-dispositive motions, usually in the context of discovery.[34] The case management master is less involved with the merits of the dispute and has no decision-making authority. Instead, a case management master is like an administrator who establishes or oversees procedures to expedite the case.
[22]Federal Rules of Civil Procedure 2009 (US) r 53(a)(1).
[23] Ibid r 53(b)(2).
[24] Ibid r 53(g)(2).
[25] Ibid r 53(c)(1).
[26] Ibid r 53(c)(2).
[27] Ibid r 53(f)(1),(2).
[28] Ibid r 53(f)(3).
[29] Ibid r 53(f)(4).
[30] Ibid r 53(f)(5).
[31] Ibid r 53; M Fellows, ‘Federal Court Special Masters: A Vital Resource in the Era of Complex Litigation’ (2005) 31 William Mitchell Law Review 1269, 1276.
[32] M Fellows, ‘Federal Court Special Masters: A Vital Resource in the Era of Complex Litigation’ (2005) 31 William Mitchell Law Review 1269, 1280. See also ‘Special Masters Conference: Transcript of Proceedings’ (2005) 31 William Mitchell Law Review 1193, 1220–1221 (transcript of a conference where special masters discuss the difference between working in an ‘adjudicative’ or ‘settling’ role and the role of ‘managing the case’).
[33] M Fellows, ‘Federal Court Special Masters: A Vital Resource in the Era of Complex Litigation’ (2005) 31 William Mitchell Law Review 1269, 1282.
[34] Ibid, 1283. A non-dispositive motion is any motion other than those in which a party requests that the court dispose of some or all of the claims asserted in a complaint, petition, counterclaim or cross-claim.