What Standard Applies to Courts’ Review of Special Masters’ Privilege Calls

In some cases involving voluminous or complicated privilege issues, courts rely on special masters to make the privilege calls. Courts often call on well-respected private lawyers, or sometimes academics (which not surprisingly may result in approaches that seem impractical in the real world).

Courts relying on special masters obviously must review their privilege calls. In In re FirstEnergy Corp. Securities Litigation, the court dealt with a special master’s review of documents related to what the plaintiffs called “one of the largest corruption and bribery schemes in U.S. history,” in connection with the arrest of a former Ohio House speaker. Case No. 2:20-cv-03785-ALM-KAJ, 2024 U.S. Dist. LEXIS 84091, at *11 (S.D. Ohio May 6, 2024). The special master reviewed withheld documents related to investigations by Squire Patton Boggs and Jones Day. In assessing the standard for its review of the special master’s findings and conclusions, the court interestingly noted that courts in the Sixth Circuit “ha[ve] not always been consistent” in their approach. Id. at *16. The court ultimately “err[ed] on the side of caution” in explaining that it would “review[] the Special Master’s determinations regarding attorney-client privilege de novo and review[] procedural matters for abuse of discretion.” Id. at *16-17.

Given this court’s acknowledgment of inconsistencies in its fellow district courts’ standards when reviewing special masters’ privilege calls, lawyers handling cases requiring a special master’s involvement must check the presiding judge’s approach.