Chapter §53.3.4 Comparison With Federal Rule



As originally drafted in 1938, Fed. R. Civ. P. 53 envisioned a rather limited role and purpose for masters, focusing primarily on the use of trial masters who heard trial testimony and reported recommended findings of fact. Shira A. Scheindlin & Jonathan M. Redgrave, Special Masters and E-Discovery: The Intersection of Two Recent Revisions to the Federal Rules of Civil Procedure, 30 Cardozo L. Rev. 347, 348 (2008); see also David I. Levine, The Authority for the Appointment of Remedial Special Masters in Federal Institutional Reform Litigation: The History Reconsidered, 17 U.C. Davis L. Rev. 753, 784-88 (1984) (discussing examples from before and after the promulgation of the equity rules).

The original rule stated that in the context of cases to be tried by a jury, "a reference shall be made only when the issues are complicated." Fed. R. Civ. P. 53(b) (1938). The court's inquiry in reviewing such an appointment was whether the use of a master would assist the jury in reaching a resolution. The master had the authority to conduct hearings, require the production of evidence, rule upon the admissibility of evidence, examine witnesses, and submit a report setting forth findings of fact. The master's report was then presented to the jury as admissible evidence that the jury could consider. See Jackson v. Local Union 542, Int'l Union of Operating Eng'rs, 155 F.Supp.2d 332, 337 (E.D. Pa. 2001) ("Master's findings are simply admissible evidence to be considered by the jury, with the jury remaining the ultimate arbiter of the fact.").

In nonjury matters, the original Fed. R. Civ. P. 53 provided that "save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it." Fed. R. Civ. P. 53(b) (1938). In La Buy v. Howes Leather Co., 352 U.S. 249, 77 S. Ct. 309, 1 L. Ed. 2d 290 (1957), the Supreme Court identified considerations that were insufficient to establish an exceptional condition but failed to define what considerations constituted an exceptional condition. The lower court had based its order of reference to a special master on the congestion of its docket, the complex nature of antitrust litigation, and the length of the trial. The Supreme Court declared that "congestion in itself is not such an exceptional circumstance as to warrant a reference to a master. If such were the test, present congestion would make references...

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