By Peter S. Vogel
Before I got into law, I had a career as a computer programmer, received a master’s degree in computer science, and taught graduate courses in computer and information systems. When I started my law practice in 1978, I was already deeply involved in electronic discovery in its infancy.
Although fortunate enough to be armed with my own technical background, I have concluded that most lawyers do not really understand computer systems, the Internet, and e-mail, except to how to use them. As a result, many lawyers turn to discovery consultants to help them recognize what they should look for and where during discovery.
Likewise, judges confronted with arguments concerning electronic discovery and electronic evidence will turn to special masters with expertise in this area for help in assessing the dispute.
With more than 90 percent of the information presently created in electronic form, discovery of e-mail and electronic records has completely transformed litigation. The need for special masters has never been greater.
Role of special master
Federal and state judges can appoint special masters to help with any particular controversy, including electronic discovery and related issues. A special master in electronic evidence disputes can reduce the cost of the litigation by getting at the heart of the electronic data more quickly and providing judges answers to complex computer disputes.
A special master may help avoid a trial where the result is driven by the apparent destruction of evidence – when in fact what was destroyed may be elsewhere, or even irrelevant..
The appointment can be made in a number of ways, but the most common is for the judge to propose to the parties that a specific individual be appointed, or for the parties to propose that the judge appoint an agreed upon individual to serve. It is important that the special master both understand the technical issues, and have a working knowledge of the substantive and procedural law.
Normally the order appointing the special master specifically outlines the tasks to be accomplished, compensation, and any other special requirements. Often the order will be prepared before the special master is selected, but on many occasions the special master can assist the parties in drafting the specific requirements.
It’s generally better for the special master to participate in drafting the order since frequently the parties do not yet fully understand the electronic technology issues, or what is required of the special master to complete the assignment.
A special master in electronic discovery cases usually:
conducts interviews of IT employees;
reviews software;
examines data;
searches websites;
holds hearings on various disputes;
assists judges by reviewing motions for summary judgment; and
has private meetings with judges.
The order engaging the special master must be written broadly enough to permit some latitude in completing these and other tasks.
Sample cases
By way of example, I thought it would be helpful to discuss a few specific assignments I have had as a special master.
Reviewing e-mails. I was appointed to review an e-mail server to try to determine if certain offending e-mails were created on that server, or were created elsewhere. The identity of the author of those e-mails was at the heart of the controversy.
To complete the assignment, I reviewed hard drives from computers that were no longer in use, backup files from old e-mails, and Internet-based e-mail systems.
Interestingly enough, the hard drives removed from the old computers created unique problems. When former employees stopped using the computers, employees were not sure if they should have reformatted the old disk or saved them.
Luckily, in compliance with company policy, they had removed the hard drives and put them on a shelf. If they had not done so, there would have been consequences. Ultimately, I reviewed thousands of e-mails and filed a report with the judge about my findings, which helped identify the true author of the e-mails and led to a swift settlement.
Copyright infringement. I was a court-appointed mediator but the case did not settle. When the judge sent the lawyers back to mediation after six months of very expensive discovery, I asked if any of the parties had changed their positions. After hearing that discovery did not persuade anybody to move closer to settlement, I proposed that the judge appoint me to serve as special master.
The dispute was about 13 million lines computer software that was purportedly infringing licensed software. The parties had as experts well-known computer science professors from some the most prestigious universities in the country, but they could not agree on the time of day, let alone on 13 million lines of computer software.
I sat in on a number of hearings with the judge, and then advised the judge what the experts’ testimony meant and how it affected the case. I also reviewed more than 40 motions for summary judgment relating to the claims in the lawsuit and prepared memoranda for the judge.
Ultimately the case settled on the first day of trial, because the parties better understood both the electronic evidence and the risk of the judge and jury not clearly understanding the essence of the evidence.
Data in old computer systems. Accounting data in an old computer using software that was more than 20 years old was at the heart of a lawsuit concerning improper billing. The case was complicated because the old accounting data was converted to run in a newer and more sophisticated database system.
As special master, I was required to review the computer software, the related accounting records, the new complicated database with its related accounting records, and prepare reports of my findings to the judge.
One of the parties kept insisting that I report on metadata, which is only found in Microsoft files and did not exist in the old or new accounting systems. That lawyer did not understand metadata, and was unwilling to hire an expert to assist and explain basic technology.
Peter S. Vogel is a trial partner at Gardere Wynne Sewell (www.gardere.com) where he is chair of the electronic discovery and document retention team and co-chair of the technology industry team. Before practicing law he was a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. Since 1997, Peter has served as the founding chair of the Texas Supreme Court on Judicial Committee on Information Technology, which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. He can be reached at pvogel@gardere.com or 214.999.4422.
Reprinted with permission from Atlantic Coast In-House, a quarterly publication of Lawyers Weekly, Inc.
© 2007 Lawyers Weekly Inc., All Rights Reserved.
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April 2007 / ACIH
