Chapter §53.3.3 Historical Development



CR 53.3 was proposed by the WSBA Court Rules and Procedures Committee in 1992 in response to a suggestion from Jack Sullivan of the University of Washington School of Law and Seattle attorney Fredric Tausend. CR 53.3 was adopted, as proposed, and it became effective on September 17, 1993 and has not been amended. Some of the language in CR 53.3 was drawn from FRCP 53, but the scope of CR 53.3 and the authority of the master are more limited than under the federal rule. CR 53.3 also borrowed provisions from RCW Ch. 4.48 (Trial Before Referee).

When CR 53.3 was first proposed, it was accompanied by the following drafter's comment:

There are times when lengthy discovery disputes can be anticipated, either because the case involves complexissues with multiple parties and counsel, or because disruptive conduct is expected for any reason. This proposed new rule would allow the court to refer the matter to a special master. On a crowded motion calendar, it is very difficult for the judge to obtain a full picture of the history and complexity of the lawsuit. Use of the special master mechanism would allow the court to gain a neutral and in-depth understanding of the dispute from the report authorized by the proposal. Appointment of a master may also in itself help deter unprofessional and improper discovery conduct. (See also the purpose statement discussing proposed amendments to CR 30.)

CR 53, "Masters", is nowreserved, and CR 53.1, "Referees", contains a reference to RCW 4.48, entitled "Trial Before Referee". This statute does not lend itself to the appointment of a special master to preside at depositions and to adjudicate discovery disputes. Proposed new CR 53.3, which borrows language from Fed. R. Civ. P. 53 and RCW 4.48, is specifically drafted to address discovery matters.

Section (a) allows the court to appoint a special master, either to preside at depositions or to adjudicate discovery disputes. A showing of good cause must be made before the appointment is authorized. Section (b) requires that the master be a lawyer admitted to practice in Washington.

Section (c) deals with the master's compensation. The committee was concerned that a party with significant financial resources not be able to take advantage of a party with lesser means, and thus provided that among the factors the court is to consider in allocating responsibility for the master's compensation is "the relative financial resources of...

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