The First Court of Appeals recently came out with a significant case dealing with electronic discovery in civil cases. In re Art Harris concerned a petition for a writ of mandamus where Art Harris asked that the court of appeals direct the trial court to withdraw certain discovery orders. A large part of the case deals with how the trial court missed it with the Weekley Homes decision, but the more noteworthy part of the case deals with the appointment of a special master for electronic discovery. Through what appears to be a series of procedural miscues, the trial court entered an order that appointed an outside lawyer as a special master "to conduct an independent forensic examination of the relevant computer hard drives, external hard drives, jump drives, and other such repositories of electronic communications" of the defendants. The court gave him discretion to employ or modify search terms to find documents responsive to the plaintiff's request for production.
After some more procedural miscues, Harris balked at the appointment, arguing that the trial court erred in appointing a master and that the outside lawyer had acted outside the scope of his authority by making "sarcastic, editorial, and prejudicial comments about [Harris] regarding his date and his style of writing, as well as disclosing information gleaned from emails," some of which were protected by privilege. Harris, a journalist, file the writ when the trial court denied his motion to reconsider the appointment.
The court of appeals held that the trial court abused its discretion by appointing a master to conduct a forensic computer examination. The appellate court ruled that the judge had improperly conflated the roles of a special master and forensic computer examiner. The court explained that a special master has the power to regulate all the proceedings in every hearing before him, while the forensic examiner's role is just to create forensic images of storage devices and then to search them for specified documents using a predesignated list of search terms. The court pointed out that Weekley Homes didn't give the examiner any master-like authority to conduct hearings, to make recommendations regarding what evidence should be produced, or to require the production of particular storage devices. And, in contrast to the rules governing special masters where his costs could be taxed, the requesting party has to pay for the examiner on his own dime.
Get a copy of the case here: In re Art Harris.