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by Andrew Flake

We’ve read recently, in the highly-charged political context of a dispute between the national records administration and the former president, of the role a special master has played. Because how the court-appointed experts fit into litigation is not always fully understood, it is worth taking a closer look, starting with how a master is appointed.

It is the trial court that appoints a special master, which then, subject to the limits set forth in the order of appointment, exercises delegated authority. In federal practice, the special master serves as a utility player, handling non-jury trial matters in cases requiring special accounting or particularly complex damages calculations, or handling pretrial and postrial matters where district or magistrate judges are too busy. Rule 53 defines these functions by permitting a court-appointed master to

(A) perform duties consented to by the parties;

(B) hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury if appointment is warranted by:

(i) some exceptional condition; or

(ii) the need to perform an accounting or resolve a difficult computation of damages; or

(C) address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.

In Georgia, our Superior Court Rule 46, modeled on Fed. R. Civ. P. 53, elaborates with more detailed provisions for the kinds of authority a master can exercise, also permitting a court to empower the master:

… to provide guidance, advice and information to the court on complex or specialized subjects, including, but not limited to, technology issues related to the discovery process;(d) to monitor implementation of and compliance with orders of the court or, in appropriate cases, monitoring implementation of settlement agreements;(e) to investigate and report to the court on matters identified by the court;(f) to conduct an accounting as instructed by the court and to report upon the results of the same;(g) upon a showing of good cause, to attend and supervise depositions conducted outside of the jurisdiction;

We can see from these counterpart provisions that the master, because of the flexibility of the appointing order, can usefully address many of the kinds of issues that arise in more complicated commercial cases.

Often, the parties will consent to appointment of a special master. When might that make sense? Instances I’ve seen masters employed effectively include addressing involved pre-trial motions, assisting with in camera privilege review, and refereeing contentious discovery where very timely attention to ongoing disputes is needed. Of course, counsel needs to be mindful of expense when considering agreeing to a special master, and the court is required to consider it, balancing costs against the particular needs of the case.

Whatever her charge, the master will issue a report or make a recommendation to the court, and generally remains accountable and subject to the court’s direction. Both the federal and state counterpart rules address the timing of challenges to an order, though I find the most successful special master tenures begin with detailed enabling orders that also contain both clear limits and clear procedures concerning special master reporting. In fact, an order may be subject to remand or reversal if it does not spell out the requisite details, including “the special master’s duties, specific limits on the special master’s authority, and standards for reviewing the special master’s orders, findings, and recommendations .” That language is from a 2010 Supreme Court decision in E.I. DuPont de Nemours & Co. v. Waters, issued just after Georgia’s Uniform Superior Court Rule 46 became effective.

As a last note and nuance, despite patterning our Civil Practice Act largely on the federal rules, our CPA does not have a counterpart special master provision. Instead, especially prior to 2010, Georgia courts relied upon the statutorily-defined “auditor.” Historically, in addition to assisting in injunction matters, and examining records and reporting on complex issues of accounting or damage calculations, an auditor was used in the broader utility/delegation roles we associate with special masters. Whether the auditor statute could be stretched so far was the subject of some inconsistent appellate decisions. From 2010 forward, the issue has been less acute, because Rule 46 now merges those functions, addressing limitations in the statutory auditor scheme by providing for a more flexible and robust special master.

Nonetheless, and despite the role’s apparent superfluity, courts will still occasionally refer to and draw upon the auditor statute.In one recent case, an appointing order not only empowered a neutral as both auditor and special master, but also as a receiver. Unsurprisingly, it took an appeal to unravel the issues, with the appointing order ultimately being reversed.

The key here, again, is a clear appointing order that starts with the requirements of the enabling rule, whether Fed. R. Civ. P. 53 or Uniform Sup. Ct. R. 46, and is tailored to the needs of the case. The special master role, as a concurring opinion in the A&M Hospitalities opinion stresses, remains a crucial one in our judicial system. As counsel, it gives us one more option for a more tailored and efficient resolution strategy that fits the needs of the commercial case at hand.

[The referenced opinions are E.I. DuPont de Nemours & Co. v. Waters, 695 S.E.2d 265, 267, 287 Ga. 235, 238 (2010) and A&M Hospitalities, LLC v. Alimchandani, 856 S.E.2d 704, 708, 359 Ga.App. 271, 276 (2021).]