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Discovery Matters

October 2013

By: James C. Milton

Discovery disputes take up a great deal of time and account for much of the cost of litigation. In complex cases, discovery can become the tail that wags the dog - with the pace and tenor of the litigation controlled by discovery requests, depositions, motions to compel, and rulings on discovery disputes.

More directly than anyone, parties to litigation feel the costs and delays associated with litigation and discovery. At the same time, the court system itself can become clogged with discovery disputes. A clogged court system will beget further delays and more costs. It is no easy task to eliminate delays caused by discovery disputes. One answer might be the use of discovery masters. Discovery masters are professionals - lawyers, accountants, or even technology specialists - who serve as an arm of the court.

Federal courts have used masters since an early date. In 1958, U.S. District Judge Irving R. Kaufman explained that courts have used masters to lessen the burden on courts and expedite disposition of some matters, providing an invaluable contribution to the administration of justice. By 2003, use of masters in federal courts had expanded widely into discovery and other pretrial functions.

Current Oklahoma statutes have allowed for masters since 1910, calling them referees. But the current statutes are largely unchanged since the early days of statehood. These statutes allow for referees only in accounting actions or by consent of the parties. Next month, the Oklahoma Bar Association House of Delegates will consider a proposal to add discovery masters as tools available to Oklahoma state court judges in managing their dockets. This proposal would provide a clearer procedure for naming discovery masters, allowing their appointment even if one of the parties refuses to consent.

Oklahoma courts should not take lightly the concept of appointing a discovery master if a party objects. By appointing a professional to serve as an arm of the court, the court will be imposing a cost of litigation. Discovery masters' fees are paid by the parties. In order for discovery masters to be a part of the solution, rather than a part of the problem, this tool should be used when the masters' skills can speed up the litigation process or add efficiency to the process.