By Daniel Garrie and Michael Mann (October 1, 2019)
Originally published by The American Lawyer (www.law.com).
As technology becomes more and more pervasive, there are few litigations in which technology does not play some role. The central issue of a case can often require technical knowledge to understand. When attorneys and judges do not understand the technical concepts at the heart of a dispute, delays and misunderstandings can result.
Thus, courts and attorneys are increasingly looking to alternative processes to address technical issues more efficiently, such as the appointment of technical special masters to guide the parties and court through the technical aspects of the litigation. This article will offer practical guidance on the nuts and bolts of selecting and working with technical special masters to help reduce the time and cost of litigation.
A technical special master is a type of special master appointed by the court to oversee and manage technical issues beyond the expertise of the parties and court. While the exact functions of a technical special master vary from case to case, the responsibilities typically include establishing technical protocols with court mandates, resolving technical issues related to compliance with the protocol and advising the court on technical matters.
As an example of a case that may require a technical special master, consider a lawsuit over the ownership of a web-based application that both parties are using as part of their businesses. The judge has granted a preliminary injunction giving both parties coequal access to the application, pending the result of the litigation. However, the injunction does not end the matter, as it merely states the high-level legal ruling.
The parties and court must still address the technical details involved in what constitutes “coequal access.” This can involve a wide variety of complex issues, such as the following: Who is granted administrative rights to the software? How are patches and modifications to the software managed? What happens if the parties disagree about potential modifications? Where will the data be stored? What happens if the software crashes and needs to be fixed quickly? The court will most likely not be equipped to answer these questions. The parties may not be cooperating with one another, which can create disputes that need to be resolved before the proceedings can continue.
The technical special master will guide the court and parties through this process. The technical special master’s job is to work with the parties and IT personnel to fill in the gaps of the injunction from a technical perspective, resulting in a written protocol defining how the parties are to implement its terms. Continuing with the example above, the protocol would likely define a procedure for modifying the software if the software is not working properly. The qualified technical special master will know what needs to be done to remediate such a situation and will moderate the advocacy from both sides so the protocol allows for the necessary technical steps and still provides both sides an opportunity to voice objections they may have to proposed modifications.
The technical special master may then hold hearings and mediate disputes between the parties on technical issues within the scope of the injunction. This is a critical function because when software fails, every second it is offline is costing the parties money. Allowing the technical special master to step in and rule on disputes that are highly technical and time sensitive can save both parties a significant amount of money and result in an equitable outcome, thus avoiding briefing the judge on the parties’ arguments and educating the judge on the technology at issue. This can be especially useful since the attorneys themselves often do not fully understand the technology in dispute, which can further derail the litigation.
Keep in mind, however, that there is no formula for when to enlist a technical special master; each case is unique. Frequently, technical special masters are appointed in highly technical, fact-intensive disputes in which nuances are critical. However, assess whether a similar result could not be achieved through mediation, arbitration or other means.
The technical special master’s experience is often a critical driver of meaningful cost savings and effective resolution of the dispute. Not choosing the right technical special master could do more harm than good. When selecting a technical special master, the court and parties should seek a technically savvy individual with specific experience regarding the systems at the heart of the dispute and a firm grasp of the law.