The share of litigation cost consumed by electronic evidence has been climbing for two decades, and the questions at the center of commercial disputes have become machine questions: what a system did, where the data lives, whether the record of it can be trusted. The profession’s answer has been a role that barely existed at the turn of the century — the technical neutral. Its history is worth telling accurately, because the history explains what the role is for.
§ 01 · The eDiscovery wave
The role begins with email. As electronically stored information swamped conventional discovery practice, The Sedona Conference spent the early 2000s building a shared vocabulary and principles for electronic discovery, and the 2006 amendments to the Federal Rules of Civil Procedure brought ESI formally within the discovery rules. Courts began confronting disputes — over preservation, formats, search, privilege — that neither judges nor generalist masters were equipped to referee, and the eDiscovery special master became a recognized appointment.
The data kept growing faster than the process. Writing in 2016, I noted that 90 percent of the world’s data had been created in the preceding two years, arriving from automobile black boxes, cloud storage, and wearable trackers. The 2015 amendments answered by pushing responsibility onto the parties: Rule 1 was amended to direct the court “and the parties” to secure the just, speedy, and inexpensive determination of every action; Rule 26(b) codified proportionality; Rule 16(b)(2) cut the scheduling-order deadline from 120 days to 90. Chief Justice Roberts, in the 2015 Year-End Report on the Federal Judiciary, wrote that the careful assessment of actual discovery need “may … require the involvement of a neutral arbiter … to guide decisions.” Many attorneys took him at his word. The technical eDiscovery neutral’s work was procedural but real: developing processes to identify, extract, analyze, verify, and validate relevant data; drafting protocols to govern the parties’ discovery obligations; guiding keyword selection, predictive coding, and technology-assisted review — case-agnostic functions, useful in any matter with complex discovery.
§ 02 · From procedure to substance
The second stage of the evolution was substantive, and the authority was already in place. Federal Rule of Civil Procedure 53(a)(1)(A) lets a judge appoint a master to perform duties the parties consent to; to address pretrial and post-trial matters that cannot be effectively and timely handled by an available district or magistrate judge; to make or recommend findings of fact in non-jury matters where an exceptional condition warrants it; and to perform accountings or difficult damages computations. What changed was what courts asked the appointee to do with that authority.
A forensic neutral does both the legal work and the technical work: drafting forensic protocols and monitoring compliance with them; determining the existence and authenticity of digital evidence; performing or validating court-ordered purging of data from systems; analyzing deleted or corrupted data for evidence of wrongdoing; and auditing systems against a court order or regulatory mandate. The dual capability is the point. Consider two rival technology companies: key employees leave Company A for Company B, and Company B soon announces products that mimic Company A’s. Neither side can let the other — counsel included — into its source code or systems. A qualified forensic neutral with ties to neither party can examine both, answer the misappropriation question directly, and then make the remedy real by verifying that proprietary data is actually returned and deleted. The presence of a neutral technologist may be the most, if not the only, effective way of ensuring compliance with such an order.
The neutral does both the technical work and the legal work. That dual capability is what the role evolved to deliver — and why it keeps absorbing new classes of dispute.
§ 03 · The role broadens — mass torts and fund administration
The same Rule 53 machinery now runs well beyond data disputes. In mass tort litigation, courts appoint neutrals to oversee the distribution of common benefit funds — verifying fee submissions, evaluating the value of each firm’s contribution, mediating allocation disputes among plaintiffs’ counsel, and reporting to the court. Court-appointed neutrals have played that role in recent years in In re Roundup Products Liability Litigation (N.D. Cal.), In re JUUL Labs, Inc., Marketing, Sales Practices, and Products Liability Litigation (N.D. Cal.), and In re 3M Combat Arms Earplug Products Liability Litigation (N.D. Fla.). An appointment that began as a way to referee load files now administers some of the largest fee allocations in American litigation.
§ 04 · The AI register
The current stage is generative AI. Synthetic media has pushed authentication to the front of the evidence fight, and judges facing deepfake allegations must scrutinize exhibits as never before. As I have argued in the debate over amending Rule of Evidence 901, courts and parties should consider appointing technical neutrals or special masters where generative-AI authentication issues loom large: a neutral already fluent in the technology needs less briefing to get up to speed, relieves the court of sorting dueling experts, and tends to produce fairer and more accurate results at lower cost. The institutions have moved with the caseload — JAMS published rules purpose-built for disputes involving AI systems, a formal recognition that AI-centered disputes need procedures designed for them.
§ 05 · When to engage one
The questions I proposed in 2016 for deciding whether to engage a technical neutral still hold, with the categories widened by a decade of technology: (1) Does the dispute center on preserving, collecting, or spoliating electronic data — or on what an automated system actually did? (2) Does it involve proprietary or heavily customized systems no outsider can casually read? (3) Will a protocol be needed to govern the parties’ compliance with their obligations? (4) Are there large volumes of data to be retrieved, processed, searched, and reviewed? If the answers run yes, engage early. It is far faster and cheaper to involve a neutral before the issues metastasize than to remediate afterward, and the compressed deadlines of the modern Federal Rules leave little room to improvise.
The history has one throughline. Every time the technology outran the process — email, big data, forensic evidence, now generative AI — courts reached for the same instrument: a neutral who could read the machine and carry the law to it. Nothing about the direction of the technology suggests that will reverse. Treat the technical neutral not as an exotic appointment but as standard equipment for the technically contested case.
Draws on Daniel's published work, including “Deciphering Digital Dilemmas” with Hon. Charles Margines (Ret.), “The Power of Neutrality” with Hon. Gail A. Andler (Ret.), and his Neutral Corner columns for Thomson Reuters.