The Strategic Value of Appointing a Special Master or Court-Appointed Neutral for Discovery in Complex Litigation 

By: Jeffrey A. Conen, Hansen Reynolds LLC

Modern civil litigation, especially business, construction, employment, insurance, and class action or multi-party cases, has transformed discovery into one of the most resource-intensive and contentious phases of litigation. The exponential growth of electronically stored information (ESI), coupled with heightened proportionality requirements, privilege complexity, and motion practice, has placed extraordinary pressure on trial courts and litigants alike. 

Federal rules, Wisconsin statutes, and nationally-recognized best practices all converge on a common solution: the strategic appointment of a Special Master, referee, or Court-Appointed Neutral to manage discovery in complex cases. Far from being an extraordinary measure, the use of Discovery Neutrals reflects a mature, pragmatic approach to modern case management.

Federal courts have explicit and flexible authority to appoint Special Masters under Federal Rule of Civil Procedure 53(a)(1)(C) to address pretrial matters that “cannot be effectively and timely addressed” by the district court. Complex discovery disputes, especially those involving ESI, fit squarely within that framework. Rule 53 establishes a structured framework for appointing and supervising a Special Master while preserving the court’s ultimate authority over the case. Before appointing a Master, the court must give the parties notice and an opportunity to be heard, and parties may suggest candidates.

The Federal Rules also set forth the required contents of the Order. The Appointing Order must define the Master’s duties and limits of authority. Unless limited by the appointing order, a Master may regulate proceedings related to assigned duties, take appropriate measures to perform those duties efficiently and fairly, along with conducting evidentiary hearings, including compelling and recording evidence. A Master may also impose non-contempt discovery sanctions under Rules 37 and 45 and may recommend contempt sanctions to the court. This Rule further requires the Order specify whether and when ex-parte communications with the Court or a party are permitted, identify what materials constitute the record of the Master’s work, establish procedures, deadlines, and standards of review, and set the basis and method for compensation. This authority suggests that courts are encouraged to manage discovery actively and creatively when traditional motion practice proves inefficient. 

Wisconsin courts have similar authority under Wis. Stat. § 805.06, which authorizes the appointment of a referee “in all cases.” The statute grants broad discretion to define the referee’s powers and permits the court to adopt, modify, or reject the referee’s findings and recommendations. Wisconsin’s discovery statutes also emphasize judicial control over discovery that is unduly burdensome, expensive, or disproportionate. In complex cases, particularly those involving ESI, the appointment of a Discovery Neutral provides Wisconsin judges with a practical mechanism to exercise that control without diverting limited judicial resources from other matters. 

The appointment of Discovery Neutrals is also suggested by The Sedona Conference. This is a nonprofit, nonpartisan legal think tank dedicated to advancing the law and practice of complex litigation, with a particular focus on eDiscovery, information governance, and emerging technologies. It is best known for its influential Sedona Principles, which provide practical, consensus-based guidance widely relied upon by courts, litigators, and discovery professionals nationwide, including Wisconsin and the Federal Courts.[1] This document states that discovery should be “reasonable and proportional to meet the needs of the case.”[2] Discovery Neutrals are uniquely positioned to operationalize proportionality by evaluating custodian selection, data sources and preservation scope, search methodologies, and production formats. These determinations are often fact-intensive and technical, making them ill-suited to serial motion practice. A Neutral with discovery expertise can make informed, case-specific recommendations that align directly with the Federal and Wisconsin Rules.

Furthermore, The Sedona Principles highlight cooperation as a cornerstone of effective discovery.[3] In practice, cooperation often diminishes under the pressure of high-stakes, high pressure litigation. A Court-Appointed Neutral can serve as a stabilizing force—providing structure, credibility, and accountability when adversarial dynamics threaten to derail discovery. By facilitating dialogue, discouraging gamesmanship, and resolving disputes promptly, Discovery Neutrals help restore professionalism without sacrificing enforcement.

Court-Appointed Neutrals with expertise can assist with a number of matters that routinely arise when dealing with complicated ESI issues. First, the Neutral can assist in defining search protocols and validation by facilitating agreement on custodians, data sources, time frames, and search methodologies. The methodologies can include keywords, analytics, or TAR (Technology Assisted Review) to ensure the approach is reasonable, transparent, and proportional. The Neutral can also oversee validation through sampling and quality-control measures, helping resolve disputes early and providing confidence that discovery results are reliable and defensible. Second, a Neutral can help the parties agree on which metadata fields matter and on a practical production format that works for both sides. Resolving these issues early avoids unnecessary disputes and ensures the production is usable and proportional. Finally, a Neutral can help the parties establish clear privilege review and clawback procedures, including the use of privilege logs and non-waiver agreements. By setting these ground rules early, the Neutral reduces disputes and protects against inadvertent waiver while keeping discovery efficient and proportional. As a result, courts are assisted in informed and flexible decision-making rather than rigid, one-size-fits-all discovery orders.

Discovery delay is a driver of cost escalation and strategic abuse. Unresolved discovery disputes can distort litigation outcomes and settlement leverage. Discovery Neutrals mitigate these risks by resolving disputes on accelerated timelines through informal conferences, targeted technical hearings, or prompt written recommendations. Therefore, courts retain ultimate authority while benefiting from rapid issue resolution that keeps cases on track.

Contrary to common perception, the use of a Discovery Neutral often reduces overall litigation cost. Discovery expenses should be allocated fairly and proportionately.[4] Both federal and Wisconsin rules expressly permit courts to allocate Special Master compensation equitably, including consideration of party conduct. When Discovery Neutrals prevent serial motions, excessive production, or discovery abuse, their involvement frequently yields net savings—both for litigants and the court system. 

The Sedona Conference commentary repeatedly observes that disciplined, transparent discovery promotes earlier and more informed settlement. By narrowing disputes, clarifying evidentiary realities, and removing discovery as a strategic weapon, Discovery Neutrals help parties assess risk realistically and move toward resolution. In many cases, this process advances settlement without formal mediation, simply by restoring balance and predictability to discovery. 

The Federal Rules of Civil Procedure, the Wisconsin statutes and procedural rules, and The Sedona Principles all point in the same direction: effective discovery in complex litigation requires active, informed, and proportionate management. The appointment of a Special Master, referee, or Court-Appointed Neutral is therefore not an extraordinary remedy, but a best practice grounded in procedural authority and broad national consensus. When carefully selected and properly scoped, Discovery Neutrals advance the central goals of the civil justice system—fairness, efficiency, proportionality, and the conservation of judicial resources. As electronically-stored information continues to expand in both volume and complexity, courts and litigants increasingly benefit from Neutrals with judicial or litigation experience who can assist in managing discovery disputes, developing search protocols, and supervising complex production issues. Many retired judges and experienced practitioners now serve in these roles, providing practical case management support while allowing courts to focus on the merits of the case. 

Author Biography: 

Jeffrey A. Conen joined Hansen Reynolds LLC in 2020 after a 23-year career as a Milwaukee County Circuit Judge, in which he presided over 400 jury trials in both civil and criminal cases. Prior to serving as a Circuit Judge, Jeff was elected Municipal Judge in the City of Glendale and was in private practice, handling a variety of civil and criminal litigation matters. His extensive background as a judge and experience in private practice gives Jeff the unique ability to see the parties’ needs and interests from a neutral position in a wide variety of legal areas. 

Jeff has served on the faculty for the Office of Judicial Education for over 25 years and has taught judges in the areas of evidence, alternative dispute resolution, domestic violence and a variety of civil litigation matters. This, combined with his years on the bench, has given him the foundation needed to consult on effective trial presentation, evidentiary analysis, and jury selection. 

Jeff’s practice concentrates on mediations, arbitration, trial and jury consulting, and general civil litigation. He has a passion for finding alternative ways to resolve disputes in a quick and cost-effective manner.