At a recent ABA conference, Judge Eldon Fallon (of the Eastern District of Louisiana) noted that it’s entirely proper to use a court-appointed expert under Federal Rule of Evidence 706 to assist the court with e-discovery issues.
Depending on the scope of requested discovery, that suggestion may make sense even in a run-of-the-mill product liability case. (The amended Federal Rule of Civil Procedure requiring the parties to sort out e-discovery issues early in all cases makes this a particularly timely suggestion.)
It is in mass torts, however, where the requested discovery is sure to be overwhelming and the cost of preserving and producing electronic records sure to be staggering, that the judge’s suggestion has real appeal. Very recent appointees to the federal bench may have been in practice at a time when e-discovery requests inflicted severe pain on the receiving parties. But judges who have been on the bench for a decade or more may have no personal experience with the burdens of e-discovery, and the quality of those judges decision-making may be dramatically improved by getting a little neutral expert help in this field.
If Judge Fallon likes the idea of appointing Rule 706 experts to help with e-discovery issues, other judges may like the idea, too. Stick that thought in your book of tricks for possible use in your next mass tort case.