Former President Trump’s lawyers filed a motion in federal Court seeking the appointment of a “special master” to inspect the records seized from Mar-a-Lago by the FBI on August 8, 2022. This blog will address what a special master is, the legal standard for the appointment, and the likelihood that a special master will be appointed by the federal Judge deciding former President Trump’s motion.

What is a Special Master?

Generally speaking, a special master is an individual appointed by the Court who is charged with reviewing documents and making recommendations to the Trial Court concerning discovery issues. The purpose of a special master is “to aid judges in the performance of specific duties, as they may arise in the progress of a cause.” La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957). To that end, Federal Rule of Civil Procedure 53(a)(1)(C) authorizes the appointment of a master to “address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district court judge or magistrate judge of the discovery.” Fed. R. Civ. P. 53(a)(1). Special Masters may be appointed to assist the Court with discovery in extremely complicated cases or cases in which the parties are overburdening the Court with discovery disputes.

Exceptional Circumstances Need to be Demonstrated Before the Appointment of a Special Master

Federal Rule of Civil Procedure 53 enables a judge to appoint a special master if the Court determines there are exceptional circumstances warranting the appointment. The United States Supreme Court in La Buy held that the appointment of a special master should be limited to those exceptional cases where the legal issues are extremely complicated, or discovery fights will overburden the Court.

Will the Motion Be Granted?

Candidly, I think it is unlikely that the Court will appoint a special master in this case. According to reports, the Government seized approximately 700 pages of allegedly “top secret” documents from former President Trump’s Mar-a-Lago home. Because these documents could be “top secret,” the Court should be extremely careful who it allows to review them. Hence, I believe that the Court is more likely to conduct an “in camera” review of these documents rather than have a private citizen appointed by the Court to review the documents.

An “in camera” review is a private, confidential review by the Judge handling the case. Because there are not a ton of documents seized by the FBI and the sensitive nature of this case, I believe it is more likely that the Judge will perform an in camera review as opposed to appointing a special master. The appointment of a special master to review these documents is likely to make the potential secrets contained in those documents more likely to be disclosed.

Assuming the Court were to grant Former President Trump’s motion, it should appoint someone with current or former security clearance to prevent the disclosure of potentially highly secretive information. Again, I think it’s unlikely that the Court will appoint a special master in the President Trump case because of the limited number of documents, the potential nature of those documents, and the need to protect the documents and information contained in the same from public disclosure and incredible media scrutiny.