Discovery Masters in Indiana’s Commercial Courts – A Time and Cost Saving Option For Business Litigants
The Indiana Commercial Courts pilot project launched in 2016, and the statistics and feedback show that the project is a success. The Commercial Courts’ homepage lists several purposes for the pilot project, including to “allow business and commercial disputes to be resolved with expertise, technology, and efficiency” and to “employ and encourage electronic information technologies, such as e-filing, e-discovery …” (https://www.in.gov/judiciary/iocs/2944.htm). The Courts’ proactive approach toward technology and e-discovery can help business litigants reduce the time spent fighting over discovery and reduce costs.
One aspect of the Courts’ framework to achieve enhanced efficiency in resolving cases is use of special masters to manage e-discovery or resolve discovery disputes. The Courts’ Handbook encourages the parties and the judge to consider utilizing a “Discovery Master” when doing so will aid the court or the litigants. The Discovery Master can be an attorney, a senior judge or a non-attorney agreed upon by the Judge and parties, with the special skills or training to perform the required tasks.
Appendix G to the Courts’ Handbook is found at the above-referenced link and is a template order to appoint Masters in various roles, including Discovery Master. And Appendix H to the Handbook is a template order to appoint a Discovery Master specifically. The impetus for utilizing a Discovery Master may come from the court or the parties. The judge may appoint a Discovery Master, among other reasons, to:
- Supervise specified discovery issues or disputes, particularly those that may be time-consuming or need an immediate ruling
- Make preliminary rulings on claims of privilege
- Hear and determine motions for protective orders
Similarly, one topic the parties are to consider at the Initial Case Management Conference is whether a Master should be appointed to supervise all discovery or specified discovery issues and disputes. And when discovery disputes arise, one option the parties should evaluate is appointment of a Discovery Master to resolve the dispute. Although the aim in the Commercial Courts is use of Masters by agreement between the parties, the judge has the authority to appoint a special master under Indiana Trial Rule 53 without the parties’ consent.
As outlined in the Courts’ model order (Appendix H to the Handbook), the order appointing the Discovery Master will normally address the allocation of costs for utilizing the Master. The presumptive starting point, which can be adjusted for the particular case, is a 50-50 split of the cost between the parties. While a party might view such costs as unnecessary, attorneys familiar with e-discovery and discovery disputes know that it is inefficient discovery and fights leading to motion practice that are the unbudgeted expenses than can balloon out of control. Money spent to avoid those situations will generally be money well spent.
Businesses want to reduce the time and money spent on litigation. Litigants should consider whether their dispute can be resolved in the Commercial Courts. If so, a Discovery Master should help reduce the time and money spent on discovery.