Managing complex civil litigation may require a high level of expertise and technical aptitude or involve coordinating large numbers of parties and extensive evidence. The United States Federal Rules of Civil Procedure authorize judges to appoint a ‘Special Master’ to assist with complex litigation. Rule 53 was originally developed to address fact-intensive cases; a ‘trial master’ was authorized to hear testimony and prepare a report with recommended findings of fact. The rule was broadened in 2003.
Special masters can receive evidence, conduct hearings, take witness testimony, issue orders, and prepare reports for the presiding judge. The parameters of their authority are set forth in a court order. A special master may be selected on the basis of their expertise. They are most commonly used in complex antitrust and tort litigation to manage discovery-related disputes. The special master’s fee is covered by the parties, though if one party is indigent, the court can issue payment from a special fund. The court has discretion to reject a special master’s recommendations. If either party objects to the special master’s report, the court must review all of the factual and legal issues de novo. Rule 53 sets forth in more detail the rights and responsibilities of the parties in cases involving special masters.
There is no uniform method for identifying a prospective special master. An expert without legal training may be called upon when specialized expertise is needed, such as conducting claims settlements and administering class actions. Most judges choose a master from suggestions submitted by the parties, though some require the parties to jointly nominate a single individual; other judges appoint an individual they know to have relevant expertise, including retired judges, or reach out to a magistrate judge from their court.
Most U.S. state court systems have procedural rules authorizing a special master-type position however they are not used as often as in federal courts.
Notable U.S. Federal Cases Involving Special Masters:
In re Generic Pharm. Pricing Antitrust Litig., 16-MD-2724, 2021 WL 1047553, at *1 (E.D. Pa. Feb. 9, 2021): The court appointed several special masters to monitor the discovery process in a multidistrict antitrust case.
In re K-Dur Antitrust Litig., CIV. A. 01-1652 JAG, 2010 WL 1172995, at *1 (D.N.J. Mar. 25, 2010), rev'd, 686 F.3d 197 (3d Cir. 2012): this case involved consolidated multi-district antitrust litigation. The court appointed a special master to handle all motions, including motions for class certification and summary judgment.
Behrens v. Arconic, Inc., CV 19-2664, ECF No. 163 (E.D. Pa. Dec. 20, 2019): the court appointed a special master to assist with determining whether a French blocking statute prevented the defendant from complying with plaintiffs’ requests for production of documents.
Other countries do not have special masters. However, many jurisdictions authorize the participation of experts. For example, expert assessors may serve on panels with professional judges for cases where special expertise is required. The expert assessors usually have the same rights and responsibilities as professional judges. In Croatia, France, Germany, Iceland, Norway and Hungary, expert assessors sit on panels with professional judges in certain types of complex criminal cases. In England and Wales, expert assessors have been used in complex fraud cases. Typically, the role of experts in civil law countries is limited to independent, court-appointed experts who issue non-binding opinions related to technical matters.