Courts Sometimes Use Special Masters to Assess Privilege and Work Product Claims

August 1, 2018

The judge handling the criminal case against President Trump’s former lawyer Michael Cohen appointed a special master to review for privilege or work product protection documents the government seized from Cohen’s office. The media covered this as newsworthy, but special masters frequently play such a role.

In Winfield v. City of New York, Judge Parker appointed respected retired Judge Frank Maas as a special master to review defendant City’s withheld documents – noting that the “task of reviewing 3,300 documents is enormous and one that this Court cannot complete before the end of fact discovery.” No. 15-cv-05236 (LTS) (KHP), 2018 U.S. Dist. LEXIS 79281, at *25 (S.D.N.Y. May 10, 2018).

Corporate litigants should carefully consider suggesting that courts appoint such special masters. Billing by the hour, special masters frequently spend more time analyzing privilege and work product assertions. This sometimes contrasts with overworked judges, who often look primarily (if not exclusively) on the face of withheld documents for clients’ explicit requests or legal advice or lawyers’ explicit legal advice in response.