As electronic discovery issues permeate all kinds and sizes of litigation and arbitration, there are a minimum of four questions counsel should, and judicial officers might, consider in determining whether use of an e-discovery neutral is necessary and appropriate.

For context here, the term “e-discovery neutral” includes use of the neutral in a mediation or adjudicative function, or in a combination of both. The e-discovery neutral may act as a mediator facilitating discussion, an adjudicator deciding disputed issues or first as a mediator and, if unsuccessful at resolution, then as an adjudicator. If the neutral is operating in an adjudicative capacity, use of Federal Rule of Civil Procedure 53 (or a state analogue) and denomination as a special master probably are required. The particular role for any dispute is highly individualized, but the underlying questions are the same.