NEWS FOR ACAM SPECIAL MASTERS

FALL 2008

 

THIS ISSUE

From The President

Legal Developments

ACAM Annual Meeting

Hotel Accomodations

 

Dear Colleague,

Below please find the latest issue of the ACAM Special Master Update, our quarterly publication. We can all continue to learn from each other and from special master developments, and you can read about it right here.

In this issue you will find ACAM President David Herr’s latest update, summaries of the latest appellate opinions touching issues relating to special masters, and a program description and registration information for the January 30-31, 2009 ACAM Annual Meeting at the Arizona Biltmore Hotel in Phoenix.

You are welcome to participate in creating this newsletter. Please consider submitting for publication concise summaries of special master news, successes, ideas, court cases, or any other information worth sharing. Email your contributions to rhaydock@adrforum.com.

Roger Haydock

 


FROM THE PRESIDENT

I am excited to be able to write this column with the formal announcement of the Academy’s meeting in Phoenix in January. It promises to be a “Don’t Miss” program, and we hope to see every Fellow there. We have assembled what I believe is an unusually diverse and compelling program for the Fellows, and the Arizona Biltmore is a delightful venue for us. In addition to meeting all our formal meeting needs, it will provide ample opportunities for the Fellows to get together informally to get to know each other. President-Elect Martin Quinn deserves special praise for helping put this program together.

The meeting program probably speaks for itself, but a couple program sessions deserve special attention. We will hear from a Judge Charles Breyer, a federal judge in San Francisco and Judge Shirley Kornreich, a state court judge in New York who have done pioneering work using a single, jointly-appointed master to coordinate related state and federal cases. Judge Fern Smith, who served as that Special Master, will also be with us to talk about her experience in these cases. We will also hear what promises to be a fascinating discussion of settlement by Randall Kiser, whose study of how parties make mistakes in gauging the settlement value of cases has attracted media attention throughout the county. For those of us who serve as a mediator or settlement master, this session itself will be worth the price of admission. Francis McGovern will share a few pearls of wisdom with us at dinner on Friday night.

Please register now—our room block and rate is available on a space-available basis. We want make sure everyone who wants to attend has a room. Contact the Arizona Biltmore directly, but be sure to identify yourself as a registrant for the Academy of Court Appointed Masters meeting to obtain the ACAM rate.

The Academy is doing well, but we need to take steps to ensure that we will continue to grow. We are a young organization, and I think it is safe to say we are established and operating. We need to do more, and to help discover an ongoing role for it in the firmament of organizations and groups. We do believe we have an important role to play, and we share a common experience—each of us has served the administration of justice in the role of judicial adjunct. We know that there is more for us to do on this front, and we want to have the organization extend its reach in the coming years. We will devote part of our business meeting to do some “quick and dirty” strategic planning, hoping to lead to a more comprehensive plan sometime in the coming year or two. We need the active participation of the Fellows to make the process work for the Academy.

Courts make ever-greater use of adjuncts in managing complex litigation, and an ever-increasing portion of the cases on state and federal court dockets seems to earn that “complex” label. The cases reviewed later in this newsletter reflect just the reported decisions involving the use of masters. The full extent of the iceberg is not really known. The conclusion that masters are here to stay seems inescapable.

We look forward to seeing you in January. If you have questions, feel free to contact me.

David F. Herr
(612) 672-8350
david.herr@maslon.com

 


LEGAL DEVELOPMENTS

Case Law: March 2008 - Sept. 2008

Federal Case Law

In re World Trade Ctr. Disaster Site Litig., No. 21 MC 100 (AKH), 2008 WL 793578 (S.D.N.Y. Mar. 24, 2008) (entering an order appointing a technical advisor to build and maintain a "core discovery" database, and noting that "[t]he court has ample power to appoint Special Masters," which "includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties").

Lindley v. Hackard & Holt, Civ. A. No. 3:05-CV-1476-L, 2008 WL 4062088, at *2 (N.D. Tex. Aug. 25, 2008) (stating that parties may not circumvent a dispute resolution process ordered by a special mater by moving with the supervising court for a receiver and another special master before the first special master's ordered process has been exhausted).

Jadwin v. Abraham, No. 1:07-cv-00026-OWW-TAG, 2008 WL 4057921, at *7 (E.D. Cal. Aug. 22, 2008) (appointing a special master to be present at all deposition hearings over counsel's cost objection because of counsel's almost comical "inability to cooperate with each other," including a most recent dispute about touching each other's camera and cell phones during depositions).

In re Take-Two Interactive Sec. Litig., No. 06 Cv. 803(SWK), 2008 WL 3884360, at *3 (S.D.N.Y. Aug. 21, 2008) (holding that vacatur of a special master's disposition and order requiring release of Grand Theft Auto video game code during discovery was warranted because the private interest in the protection of intellectual property rights outweighed any public expense from the proceedings, especially considering that the parties bore the expense of the special master rather than the taxpayers).

Bridgeport Guardians, Inc. v. Delmonte, No. 06-4764-cv, 2008 WL 3270891, at *4-5 (2d Cir. Aug. 11, 2008) (determining that a special master has power in the first instance to determine his or her own authority under remedial order without offending exclusive jurisdictional power of Article III judges).

Wallace v. Abell, Civ. A. No. 07-4918 (NLH), 2008 WL 2833927, at *3 (E.D. Pa. July 22, 2008) (holding that special master and a clerk of the U.S. Court of Claims - acting in their professional capacities - are immune from suit from a disappointed litigant in a vaccine-related Court of Federal Claims proceeding).

SSC Acquisition Corp. v. Ratcliff, Civ. A. No. 04-CV-421, 2008 WL 2773646, at *5 (M.D. La. July 16, 2008) (deciding that special master was allowed but not required to consult an intellectual property attorney with subject-matter experience by the parties' dispute resolution agreement, but failure to do so did not warrant vacating the special master's decision which was final under the parties' agreement).

EBI-Detroit, Inc. v. City of Detroit, No. 07-1391, 2008 WL 2130472, at *4-5 (6th Cir. May 22, 2008) (holding that an allegation that embattled Detroit Mayor Kwame Kilpatrick willfully violated and abuse his power as the federal-court-appointed special master in awarding a city utility contract was a matter for resolution in a federal court, within its subject-matter jurisdiction).

Chadwick v. Hill, Civ. A. No. 06-1709 , 2008 WL 1886128, at *8 (E.D. Pa. Apr. 25, 2008) (characterizing a special master report rejected by magistrate as having "no probative value" and would not be considered by another court in any way in determining the cause of a party's civil confinement).

White v. Nat'l Football League, Civ. No. 4-92-906(DSD), 2008 WL 1827423, at * 1 (D. Minn. Apr. 22, 2008) (finding the court's adoption of a special master's determination that former Atlanta Falcon Michael Vick was entitled to keep certain bonus monies did not constitute a showing of bias conflict with that same court's continued handling of a suit involving the National Football League and its Players' Association).

Haddad v. RAV Bahamas, Ltd., No. 05-21013-CIV, 2008 WL 1017743, at *9 (S.D. Fla. Apr. 9, 2008) (denying the appointment of a special master for the purposes of an accounting because plaintiff had not yet shown the existence of a fiduciary relationship between the parties that is a prerequisite to the use of a special master for an accounting under Florida law).

In re World Trade Ctr. Disaster Site Litig., No. 21 MC 100(AKH), 2008 WL 793578, at *1-2 (S.D.N.Y. Mar. 24, 2008) (deciding that the use of a special master to manage a core discovery database in litigation over the World Trade Center disaster site is both necessary to manage the vast amount of data and well within the court's power of appointment, despite Plaintiff's objections to the added cost to the litigants).

Thomas v. City of New York, No. 07-0941-cv, 2008 WL 731438, at *1 (2d Cir. Mar. 18, 2008) (determining that officer opting in to a class to resolve employment discrimination claims with the New York Police Department was on notice that the use of a special master implied that the master's holdings would be enforced by a trial court and subject to only extremely deferential review).

State Case Law

In re Rodella, No. 31086, 2008 WL 3845232, at *2 (N.M. Aug. 7, 2008) (holding that appointment of a special master for consideration of judicial conduct charges is not required, because judicial commission is not an inherently biased body that required special master appointment; rather, appointment of a special master under these circumstances is discretionary).

Clear Channel Outdoor, Inc. v. A Quality, Inc., No. W2007-00213-COA-R3-CV, 2008 WL 2901345, at *7-8 (Tenn. Ct. App. July 29, 2008) (characterizing disappointed party's challenge to special master's billboard appropriation damages calculations as without merit and untimely, and holding that special masters are recognized as a proper authority to which to submit an issue of damages).

Huish v Munro, No. 20050440-CA, 2008 WL 2854147, at *5 (Utah Ct. App. July 25, 2008) (deciding that a special master in custody dispute does not violate party's due process rights by accepting payment from one party and engaging in alleged ex parte communications with that party, after the other one party to the dispute cuts off communication and refuses to pay for the special master's services).

In re Marriage of Newell, No. 06CA1795 , 2008 WL 2684134, at *2 (Colo. Ct. App. July 10, 2008) (holding that the special master's findings regarding child placement could be set aside under Colorado law at the discretion of the magistrate, and the magistrate was free to hear other expert testimony; as a result, the magistrate could wholly refuse to adopt the special master's findings).

In re Marriage of Rozzi, No. 07CA0467, 2008 WL 2372227, at *5-6 (Colo. Ct. App. June 12, 2008) (finding that the combination of the roles of a parenting coordinator with that of a special master with discretionary authority was improper in a child cusody matter).

Pullen v. Walker, No. 06CA2238, 2008 WL 2372274, at *2-3 (Colo. Ct. App. June 12, 2008) (determining that the appointment of a special master did not divest the judge of jurisdiction and the appointment of the special master to oversee discovery was consistent with the rules of appointment).

Harbuck v. Houston County, No. S08A0025, 662 S.E.2d 107, 109-10 (Ga. May 19, 2008) (determining that a special master need not recuse self in a matter, despite the special master's participation in a prior transfer of real property related to one of the parties involved in the current action).

Davis v. Harpagon Co., LLC, No. S08A0644 , 661 S.E.2d 545, 548-49 (Ga. May 19, 2008) (despite "troubling" allegations of special master's conflict of interest, court refuses to find adoption of special master's report was in error because a challenge to adoption was not raised within the limited time period provided for in Georgia court rules).

CMI II, LLC v. Newman & Hewman, P.C., 2008 N.Y. Slip Op. 50966(U), 2008 WL 2025289, at *1 (N.Y. Sup. Ct. May 7, 2008) (court grants motion made by special master to hold Penthouse Media in contempt for not complying with special master's orders and finds special master has the authority to prohibit transfer or issuance of stock and to impose a monetary penalty for further lack of compliance with his orders).

Pennington v. Boundry, Inc., No. M2006-02650-COA-R3-CV, 2008 WL 1923110, at *1 (Tenn. Ct. App. May 1, 2008) (finding a special master's role as mediator to be outside the scope of his delegated duties in the resolution of a securities dispute, the special master's assessed compensation excessive; court orders fee reduction to remove costs of mediation activities).

Pine Grove Baptist Church, Inc. v. Carter, No. 2070143, 2008 WL 902239, at *2-3 (Ala. Civ. App. Apr. 4, 2008) (holding that Alabama civil trial court exceeded its and its appointed special master's constitutional authority to resolve disputes within a church community, because a civil court and its appointees - including special masters - have no constitutional authority to interfere with the spiritual affairs of a church).

Waters v. Ellzey, Nos. A07A1920, A07A2155, 660 S.E.2d 392, 395 (Ga. Ct. App. Mar. 21, 2008) (holding that, without evidence on the record in the form of a transcript during the special master's hearings, the trial court's adoption of the factual findings of the special master could not be challenged in the appellate court).

Monteil v. Greenbaum, No. D049036, 2008 WL 660261, at *4 (Cal. Ct. App. Mar. 13, 2008) (the trial court's adoption of the special master's report was erroneous where the special master did not base his determination of child support on the father's current standard of living, but rather on the child's historical needs).

Viravonga v. Samakitham, No. 07-362, 2008 WL 598141, at *1 (Ark. Mar. 6, 2008) (holding an Arkansas court's use of a special master to monitor a Buddhist temple's voting process after a conflict over control of the temple's property arose was proper because the special master and the trial court limited their role to non-religious, secular monitoring of voting procedures)

Koestler v. Koestler, No. 2006-CA-01959-COA, 976 So.2d 372, 381 (Miss. Ct. App. Mar. 4, 2008) (finding that a special master committed reversible error by allowing a party to read a letter into evidence that was written by a witness not present at an involuntary commitment hearing).

Brown v. Fokes Props. 2002, Inc., No. S08A0289 , 657 S.E.2d 820, 821-22 (Ga. Feb. 25, 2008) (holding that, under Georgia law, a party is not entitled to notice and waives its right to that notice of hearings in front of a special master when the party had failed to answer the complaint with the trial court in the matter).



ACADEMY OF COURT-APPOINTED MASTERS ANNUAL MEETING

Program

Friday, January 30

Noon

Lunch
(on your own at Biltmore)(optional)
We will reserve a table of 10 in the restaurant for
Fellows who would like to convene informally.

1:30

Welcome
— David Herr, Academy President

1:45-2:45

Use of Masters in Construction Litigation
— Bruce Edwards, JAMS, Las Vegas

2:45-3:00

Break

3:00

Insights from a Special Master in MDL Litigation
— David Cohen, Fellow, Cleveland, OH

3:30

Use of Masters as an Alternative to (or in Preference to) Arbitration and Other Forms of ADR
— Cary Ichter, Fellow, Atlanta, GA

4:15-5:30

ACAM Board Meeting Ocotillo Room
Agenda will include Future of the Academy, committees, website development, planning for next meeting
Free Time for other Registrants-

6:00-7:00

Cocktail Reception
Palo Verde Patio at Biltmore

7:00

Dinner
Palo Verde Room at Biltmore
Presentation of Civil Justice Award
Speaker: Prof. Francis McGovern

Saturday, January 31

7:30-9:00

Buffet Breakfast
Palo Verde Room at Biltmore

9:00-10:00

The Use of Special Masters in Intellectual Property Litigation:
Legal and Technical Issues, How to Conduct a “Markman” Hearing, Discovery Issues

— Martin Quinn, Fellow, JAMS, San Francisco
— Mark Spolyar, Fellow, Baker Botts, Palo Alto
— Nick Nichols, Fellow, Woodside, CA

10:00-11:00

Special Masters in Joint Federal and State Cases: How Bextra/Celebrex Crossed the Federalism Divide
— Hon. Charles Breyer, U.S. District Judge
(N.D. California)
— Hon. Fern Smith, JAMS, San Francisco
(Former U.S. District Judge (N.D. California)
and Former Director, Federal Judicial Center)
— Hon. Shirley Kornreich, Judge,
N.Y. Supreme Court, New York City

11:00-11:15

Break

11:15-12:15

What Happens When Cases Don’t Settle
12:15— Randall Kiser, Principal Analyst at DecisionSet and Author of acclaimed study “Let's Not Make
a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations
,” published in JOURNAL OF EMPIRICAL LEGAL STUDIES

12:30

Luncheon (hosted) Ocotillo Room
Academy Annual Meeting
Planning Discussion on Future of the Academy
Election of Board

7:00

Dine-around dinners at local restaurants
Eat and get to know a small group of your colleagues
Sign up sheets will be available at the meeting

Register Now!

Please click here to download your registration form.

 


HOTEL ACCOMMODATIONS

Hotel Accommodations - ACADEMY OF COURT-APPOINTED MASTERS ANNUAL MEETING

Arizona Biltmore Resort & Spa
2400 East Missouri Avenue
Phoenix, AZ 85016
1-800-950-0086

The Arizona Biltmore has established a special rate of $299.00 per night (single or double occupancy) for Fellows who are registered for the ACAM program. The room rate is exclusive of porterage ($12.00 per person) and room attendant ($3.00 per room per day) charges. The resort charges a Resort Charge of $25.00 per room, per night, that covers guest room high speed internet access, Biltmore Spa & Fitness Center admittance, unlimited local telephone service, “800” access, use of the resort’s putting surface, Biltmore Fashion Park shuttle, and morning paper.

Please make hotel reservations directly with the hotel by calling 1-800-950-0086 before December 30, 2008, as our room block is limited (to get the ACAM special rate, be sure to mention that you are registering as part of ACAM group). The rates negotiated are non-commissionable to travel agents.

The Academy has reserved a block of rooms for Friday and Saturday nights, January 30 and 31, 2009. The Biltmore will extend the ACAM room rate for 3 days on either side of our meeting, on a space-available basis.

Questions?

Call Erin Hinderks
Project Manager
(952) 564-3304

 


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