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May 31, 2019 Practice Points

Discovery Fatigue Leads to Involuntary Appointment of Master

The court has authority to impose another layer of cost and delay on your client.

By Andrew J. Felser

A recent decision from the District of Colorado highlights the cost-benefit analysis that courts employ when considering the involuntary appointment of a special master under Rule 53. In Equal Employment Opportunity Commission [EEOC] v. Western Distributing Co., No. 16-CV-01727-WJM-STV, 2019 WL 2208512 (D. Colo. May 22, 2019), an EEOC enforcement action on behalf of 58 aggrieved individuals under the Americans with Disabilities Act, neither side requested a master. But their countless discovery disputes over-taxed the court’s resources to the point where the court insisted on appointing one.

Before issuing a referral order, the court gave both parties a chance to brief any objections they might have. The EEOC objected on four grounds: (1) A master was not warranted; (2) the appointment might cause the agency to run afoul of federal procurement laws; (3) the court had not sufficiently laid out the procedure for how discovery matters would be submitted to the master; and (4) the master nominated by the court had a conflict of interest because she currently represented a client before the EEOC. The employer did not object to the appointment.

The court rejected each of the EEOC’s objections. The attorneys did not get along and were incapable of resolving disputes through conferral. As a result of their contentiousness, the court had to hold nine discovery hearings that involved six hours of courtroom time, hundreds of pages of briefing, about 40 hours of hearing preparation time by the court, and the recurring need to revisit issues that were already addressed. Several intractable disputes remained to be heard and resolved. Each of the EEOC’s other objections was readily curable. The court crafted an order that addressed each of the parties’ concerns and included cost-control mechanisms.

As Judge Varholak noted in his ruling, the appointment of a master to handle discovery disputes is the exception, not the usual or common practice. But if your case threatens to overwhelm the magistrate judge with unusually contentious discovery disputes, bear in mind that the court has authority to, in effect, impose another layer of cost and delay on your client by referring all pending and future disputes to a master.

Andrew J. Felser is special counsel at Glade Voogt Lopez Smith P.C., in Denver, Colorado.

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