Wednesday, May 13, 2015

New law on discovery masters becomes effective 11/1/2015

On May 12, 2015, Gov. Fallin approved SB1920, which contains a new law providing for discovery masters, or special masters, in Oklahoma state court proceedings.  The new law will appear at 12 O.S. 3225.1.
As Chair of the Oklahoma Bar Association’s Civil Procedure & Evidence Code Committee, I have worked with a number of Oklahoma lawyers and judges in crafting the language of this proposed statute.  The proposal was approved by the OBA House of Delegates at its annual meeting in 2013.  Subsequently, the proposal was advanced by a group of Tulsa attorneys who believe that the enactment of a discovery-master statute is a positive step for the State and its judicial system.
The language is based in large part on Rule 53 of the Federal Rules of Civil Procedure, which allows for federal courts to appoint “judicial masters” to address complex issues in exceptional cases. Judicial masters are typically private attorneys, CPAs, or other professionals who are appointed by courts to address complex issues in specific cases. 
The goal of “judicial masters,” such as discovery masters, is to ensure efficiency in the court system.  As stated in the comments to the 2003 amendment to Rule 53, “[t]he appointment of masters to participate in pretrial proceedings has developed extensively over the last two decades as some district courts have felt the need for additional help in managing complex litigation.”  Fed. R. Civ. P. 53, 2003 advisory note.  The use of masters in complex matters will help allow judges to address other matters on their dockets.  As one commentator noted, “[t]he presence of complex cases directly affects a court’s average case resolution time.”  Lynn Jokela & David F. Herr, Special Masters in State Court Complex Litigation: An Available and Underused Case Management Tool, 31 William Mitchell L. Rev. 1299, 1320 (2005).  “The objective of some state courts is to alleviate some of the caseload problems.  The sheer magnitude of a complex case may overwhelm the time available to a judge who has other cases on the docket.  Conducting in camera review of documents to review claims of privilege might take weeks or months of time, and many judges cannot fairly absent themselves from their other cases to devote this amount of time to a single case.  Other courts appoint special masters to preside over discovery motions involving highly specialized issues.”  Id. at 1302. 
Prior to the enactment of Section 3225.1, Oklahoma statutes provided for referees, but only in cases of accountings or with the consent of the parties.  Some state court judges have used the Oklahoma referee statutes for the appointment of discovery masters, but in these cases the judge would need the parties to consent.  In some cases, a litigant who is engaged in aggressive discovery tactics or otherwise causing delay or expense to the litigation process may refuse to consent to the appointment of a discovery master.  In other instances, one or more litigants may believe that they benefit from delays in litigation, and withhold their consent on this basis.  The new statute will remove the ability of litigants to withhold their consent from the appointment of a discovery master, and at the same time will impose restrictions and requirements on the use of discovery masters. 
Section 3225.1 implements a number of protections designed to prevent overuse or abuse of the discovery master tool.  More specifically, before a discovery master can be appointed in the face of objection (or lack of consent) from the litigants, the judge must make special findings that the case is complex or otherwise exceptional and that the benefit of appointment of a discovery master will outweigh the cost.  Section 3225.1 expressly states that discovery masters should not be routinely appointed.  The statute also allows the judge to allocate the cost of the discovery master based, among other things, on the litigants’ means to pay the costs and their responsibility for the discovery dispute requiring appointment of the discovery master.  By using private professionals to serve as discovery masters, Section 3225.1 shifts some of the cost of complex discovery disputes away from the State, with those costs to be borne by the litigants or a common fund.
In sum, the enactment of this new law should provide added efficiency to state-court litigation.