1 As used in this article, the phrase “special master” refers to a private attorney, retired judge, or a law professor, who is appointed on an ad hoc (case-by-case) basis to help a trial court perform judicial tasks associated with civil litigation. As I use the phrase, a special master does not include a United States magistrate, who may be used to perform similar services on behalf of the trial court. Magistrates are public employees and their powers are statutorily prescribed (see 28 U.S.C. § 636 (1976 & Supp. V 1981)). There is excellent recent scholarly discussion of the roles magistrates can play in civil actions and of the special considerations that affect the scope of their authority. See, e.g., McCabe, Peter G., The Federal Magistrate Act of 1979, 16 Harv. J. Legis. 343 (1979); Silberman, Linda J., Masters and Magistrates Part I: The English Model, 50 N.Y.U. L. Rev. 1070 (1975); and id., Masters and Magistrates Part II: The American Analogue, 50 N.Y.U. L. Rev. 1297 (1975). See also Comment, Masters and Magistrates in the Federal Courts, 88 Harv. L. Rev. 779 (1975).Google Scholar

2 For a description of many of these tasks and citations to cases in which they have been performed, see Brazil, Wayne D., Special Masters in the Pretrial Development of Big Cases: Potential and Problems, 1982 A.B.F. Res. J. 287, 295–302.Google Scholar

3 I discuss the significance the Court may ascribe to the Advisory Committee's views at pp. 147–48 infra.Google Scholar

4 I have suggested one possible version of such a new rule in Wayne D. Brazil, Geoffrey C. Hazard, Jr., & Paul R. Rice, Managing Complex Litigation: A Practical Guide to the Use of Special Masters 384–88 (Chicago: American Bar Foundation, 1983).Google Scholar

5 See, e.g., Troyak v. Enos, 204 F.2d 536, 544–55 (7th Cir. 1953); cf. Ruiz v. Estelle, 679 F.2d 1115, 1159–63 (5th Cir. 1982).Google Scholar

6 The following are some of the cases in which courts appear to have assumed that Rule 53 authorizes and guides pretrial discovery references: In re Ampicillin Antitrust Litig., 81 F.R.D. 377 (D.D.C. 1978); United States v. International Business Mach. Co., 76 F.R.D. 97 (S.D.N.Y. 1977); Omnium Lyonnais D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114 (CD. Cal. 1977); Stentor Elec. Mfg. Co. v. Klaxon Co., 28 F. Supp. 665 (D. Del. 1939); Fisher v. Harris, Upham & Co., 61 F.R.D. 447 (S.D.N.Y. 1973); Tivoli Realty v. Paramount Pictures, 10 F.R.D. 201 (D. Del. 1950); Waldo Theatre Corp. v. Dondis, 1 F.R.D. 591 (D. Me. 1941); Denton v. Mr. Swiss, 564 F.2d 236 (8th Cir. 1977); United States v. AT&T, 461 F. Supp. 1314, 1320 n.15 (D.D.C. 1978).Google Scholar

7 See Arthur Murray, Inc. v. Oliver, 364 F.2d 28 (8th Cir. 1966), cf. Wilver v. Fisher, 387 F.2d 66 (10th Cir. 1967).Google Scholar

8 Fed. R. Civ. P. 53(b).Google Scholar

9 La Buy v. Howes Leather Co., 352 U.S. 249, 253, 259 (1957).Google Scholar

10 Some commentators have suggested that the courts might require less “exceptional” conditions for pretrial references or that this precondition simply does not apply to references when courts delegate nondispositive tasks to masters in advance of trial. See Kaufman, Irving R., Masters in the Federal Courts: Rule 53, 58 Colum. L. Rev. 452, 462, 465 (1958); Silberman, Part II, supra note 1, at 1432–33 & n.264; Comment, supra note 1, at 798 n. 130; Comment, Developments in the Law—Discovery, 74 Harv. L. Rev. 940, 1004 (1961).Google Scholar

11 I assume that it is not safe to search for any such intimations in the Court's denials of petitions for certiorari. It may be noteworthy, however, that shortly after its opinion in La Buy was published, the Court refused to review an opinion in which the Court of Appeals for the Eighth Circuit approved reference of discovery matters to a special master and insisted that, independent of Rule 53, federal judges have inherent authority to make such appointments when deemed “essential” for “the administration of justice.” See First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas & Elec. Co., 245 F.2d 613, 627 (8th Or.), cert, denied, 355 U.S. 871 (1957).Google Scholar

12 Former attorney general William D. Mitchell, chairman of the original Advisory Committee, put the matter nicely while speaking at an institute in 1938 that was designed to explain the new rules. Mitchell warned his audience that:. What is said here at this meeting by members of the Advisory Committee must be taken with a grain of salt, for two reasons. The first is that officially nobody but the justices of the Supreme Court know what these rules mean. We have no right to speak for them, and what they say about the rules ultimately will control. Furthermore, I think it was Lord Bacon who said that a person who drafted a document was least qualified to interpret it, because he always had in mind what he intended to say rather than what he actually said. See American Bar Association, Rules of Civil Procedure for the District Courts of the United States, with Notes, and Proceedings of the Institute on Federal Rules, Cleveland, Ohio, July 21–23, 1938, ed. by William W. Dawson, at 179 (1938). I assume that Congress would not care enough about how the Court interprets Rule 53 to try to legislatively impose some alternative view. For a general description and critique of the process by which Federal Rules of Civil Procedure are generated today see Winifred R. Brown, Federal Rulemaking: Problems and Possibilities (Washington, D.C.: Federal Judicial Center, 1981).Google Scholar

13 Brazil, Hazard, & Rice, supra note 4, at 319–32.Google Scholar

14 The revised Rules of Practice for the Courts of Equity of the United States, as promulgated by the Supreme Court on Nov. 4, 1912 (to take effect Feb. 1, 1913), are published as an appendix to volume 226 of United States Reports (1913). I cite rules from this source hereafter as 1912 Equity Rules.Google Scholar

15 The Chief Justice probably did not want litigants to be able to use the committee's records to paint the Court into an interpretive corner. It is likely that the Court knew that it could not foresee all the implications of the rules—and wanted to retain sufficient flexibility in interpreting them to minimize problems. The Court also may have wanted to discourage the public from focusing on how much power the Court had in fact delegated to a body (the Advisory Committee) recognized by no statute.Google Scholar

16 According to Joseph F. Spaniol, Jr., Deputy Director, Administrative Office of the United States Courts, only two or three scholars have been permitted to look at the original committee's records, which are preserved in the Federal Records Center. No one has been given permission to quote from these records. There is, however, another source of data about the Advisory Committee's work. Charles E. Clark, reporter to the committee, preserved a substantial body of. documents (including verbatim transcripts of some proceedings) from this period of the committee's work. These documents are preserved in Clark's papers at the Sterling Memorial Library, Yale University. See infra note 113 for additional information about these papers.Google Scholar

17 See Clark, Charles E., Fundamental Changes Effected by the New Federal Rules I, 15 Tenn. L. Rev. 551, 555 (1939), where Dean (subsequently Chief Judge) Clark observes:. I might say, as perhaps some of you know, the Supreme Court has suggested that it is undesirable for members of the committee to write books on the subject for the general reason that lawyers might think that what they said was too official. Therefore, what I say to you is entirely unofficial, and cannot be depended on at all. (Laughter.) I believe we can make speeches because everybody knows that what one says in a speech does not count or does not mean anything. See also Dobie, Armistead M., The Federal Rules of Civil Procedure, 25 Va. L. Rev. 261 (1939) (pointing out that the author was a member of the Advisory Committee but insisting that “for any opinion expressed in this article this author alone is responsible”).Google Scholar

18 See Commentary, Use of Notes and Statements of Advisory Committee in Construction of Rules, 1940, 2 Fed. R. Serv. 632, 633, and cases cited supra note 3; id., 3 Fed. R. Serv. 663 and cases cited supra notes 1–2.Google Scholar

19 Id., 2 Fed. R. Serv. 634; id., 3 Fed. R. Serv. 663 and cases cited in note 3.Google Scholar

20 325 U.S. 438 (1946).Google Scholar

21 Id. at 444.Google Scholar

22 Id. See also supra note 12 and infra note 189.Google Scholar

23 See, e.g., McDowell v. Davies, 96 F. Supp. 301 (E.D. Wash. 1951), where Judge Driver wrote:. The meaning of the rule remains an open problem and since the meaning is not clearly expressed by the language of the rule I shall resort to the same method of solving the problem as that employed by the Supreme Court in the Mississippi Publishing Corporation case, namely, consideration of the construction placed upon the rule by the Advisory Rules Committee. Such construction is stated in the notes of the committee on Rule 64 as follows: “This rule adopts the existing federal law, except that it specifies the applicable state law to be that of the time when the remedy is sought. Under U.S.C.A., Title 28, former § 726 (Attachments as provided by state laws) the plaintiff was entitled to remedies by attachment or other process which were on June 1, 1872, provided by the applicable state law, and the district courts might, from time to time, by general rules, adopt such state laws as might be in force.”. Id. at 303. A footnote added at the end of this passage reads: “3. To the same effect see statement of Committee member Mr. Robert G. Dodge, Cleveland Institute on the Federal Rules 335.”. For a more recent example of a court extensively using records of deliberations of the Advisory Committee to help remove doubt about the meaning of one of the Federal Rules of Civil Procedure, see Whalen v. Ford Motor Credit Co., 684 F.2d 272, 274–77 (1982).Google Scholar

24 446 U.S. 740, 750 & n.10 (1980).Google Scholar

25 For evidence supporting this view see the original Advisory Committee Note to Rule 53, reproduced in 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, 492–93 appendix C (St. Paul, Minn.: West Publishing Co., 1969); statement by Robert G. Dodge (member of the original Advisory Committee) in American Bar Association, supra note 14, at 330–34; statement by Edgar B. Tolman, Secretary of the Advisory Committee on Rules for Civil Procedure, Rules of Civil Procedure for the District Courts of the United States, Hearings Before the House Comm. on the Judiciary, 75th Cong., 3d Sess., Mar. 1–4, 1938, serial 17, at 122 [hereinafter cited as Rules Hearings]; Chesnut, W. Calvin, Analysis of Proposed New Federal Rules of Civil Procedure, 22 A.B.A.J. 533, 535 (1936); Dobie, infra note 53, at 291; Hopkinson, Daniel K., The New Federal Rules of Civil Procedure Compared with the Former Federal Equity Rules and the Wisconsin Code, 23 Marq. L. Rev. 159, 179 (1939); Hammond, Edward H., Some Changes in the Preliminary Draft of the Proposed Federal Rules of Civil Procedure, 23 A.B.A.J. 629, 633 (1937); Kaufman, supra note 10, at 454; Silberman, Part II, supra note 1, at 1325 & nn.161, 162; Nathan, supra note 201, at 424; Cruz v. Hauck, 515 F.2d 322, 329 (5th Cir. 1975).Google Scholar

26 For a description of the differences between Rule 53 and the former Equity Rules, see Montgomery, Charles C., Changes in Federal Practice Resulting from the Adoption of the New Federal Rules of Civil Procedure, I F.R.D. 337, 350–51 (1940).Google Scholar

27 Clark, Charles E., The Proposed Federal Rules of Civil Procedure, 22 A.B.A. J. 447, 451 (1936); Dobie, infra note 53, at 291.Google Scholar

28 Because the new rules merged procedures in law and equity, one important effect of Rule 53 was to formally extend the guidelines about referencing to actions at common law. See Hopkinson, supra note 25, at 179. Before merger, references in actions at law were based on the courts' inherent power and were guided, loosely, by pronouncements in the cases. See Ex parte Peterson, 253 U.S. 300, 312–13 (1920).Google Scholar

29 Advisory Committee on Rules for Civil Procedure, Notes to the Rules of Civil Procedure for the District Courts of the United States, Note to Rule 53 (1938) (originally published in pamphlet form with the rules), reproduced in 12 Wright & Miller, supra note 10, at 492–93 appendix C.Google Scholar

30 Silberman, Part II, supra note 1, at 1321–22. Also see, generally, id. Part I, supra note 1, at 1072–1103.Google Scholar

31 Bryant, James R., The Office of Master in Chancery: Colonial Development, 40 A.B.A.J. 595 (1954). See also Blume, William Wirt, Civil Procedure on the American Frontier, 56 Mich. L. Rev. 161, 194–95 (1957) (alluding to late eighteenth-century territorial laws that contemplated references of matters of account); see also United States v. Manning, 215 F. Supp. 272 (W.D. La. 1963), where Circuit Judge Wisdom, speaking for a three-judge court, described the history of the use of masters thus:. The office of master in chancery, of French origin and imported with the Norman Conquest, is one of our oldest institutions in Anglo-American law. English Chancery Courts, heavy borrowers from the civil law, may have derived the system of special masters from the civilian judex of the Roman Republic and Early Empire. The civil judex (“referee”) was a private citizen appointed by the praetor or other magistrate to hear the evidence, decide the issues, and report to the court appointing him. Whatever its origin, the use of masters was a useful tool of English law before the colonization of America. In the colonial development of America “just as chancery relief had been required and had become a part of the judicial system of colonial America, so had the office of master been recognized as an integral part of the administration of that relief and had become soundly rooted in the legal thinking and custom. It was from this basis that after the Revolution the office of master in chancery or its equivalent made its way into many of the state and federal systems of procedure.” In most states today a master in chancery is an assistant of the chancellor. He may perform ministerial or judicial acts, but he “acts as the representative of the chancery court, and his official conduct is subject to the court's control and supervision.” 19 Am. Jur. Verbo Equity, 251. “Under the Constitution and statutes of some states, a master has the status of a judicial officer and all the powers of the court in which the cause is pending.” 19 Am. Jur. Verbo Equity, p. 253. Id. at 292–93 (citations omitted).Google Scholar

32 John C. Rose, Jurisdiction and Procedure of the Federal Courts 496 (3d ed. Albany, N.Y.: Matthew Bender & Co., 1926).Google Scholar

33 The three roles I describe in the text involve (1) reference of a complex part of the liability or relief aspect of an action, (2) reference for initial determination of an entire case, and (3) appointment to supervise an evidentiary deposition or to resolve a discrete dispute about interrogatories posed during such a deposition. For other descriptions and categorizations of masters' roles before 1912 see 3 Simon Greenleaf, A Treatise on the Law of Evidence, Edward A. Harriman ed., §§ 332–33, & at 317 n.2 (16th ed. Boston: Little, Brown & Co., 1899); and 2 Chrisenberry Lee Bates, Federal Equity Procedure §§ 740–46 (Chicago: T.H. Flood & Co., 1901).Google Scholar

34 Rules 73–84 of the Equity Rules that were in effect between 1866 and 1911 governed “Reference to and Proceedings Before Masters.” These rules contained several allusions to matters of account. For example, the first rule in this section, Rule 73, declared: “Every decree for an account of the personal estate of a testator or intestate shall contain a direction to the master to whom it is referred to take the same to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, unless the court shall otherwise direct.” Rule 79 also explicitly contemplated use of masters to help resolve disputes involving accounts: “All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, in the master's office, or by deposition, as the master shall direct.” And Rule 81 guided masters who were appointed in contests between creditors. All of these rules are reproduced in Hopkins, supra note 18, at 126–33. In Terry v. President of the Bank, 20 F. 777, 781–82 (C.C.W.D.N.C. 1884), the court stated that federal equity courts usually appointed masters to hear disputes about competing claims when creditors were fighting over a fund that was insufficient to pay all debts.Google Scholar

35 See Kimberly v. Arms, 129 U.S. 512, 523 (1889); William S. Simkins, a Federal Equity Suit, 583–84 (2d. ed. Rochester, N.Y.: Lawyers Co-operative Publishing Co., 1911); 2 Bates, supra note 186, §§ 792–94, 801–27; John G. Henderson, Chancery Practice 162–63, 189–93 (Chicago: T.H. Flood & Co., 1904).Google Scholar

36 Ex porte Peterson, 253 U.S. 300, 314 (1920); cf. Heckers v. Fowler, 69 U.S. (2 Wall.) 123 (1864) (reference for initial hearing and determination of all issues, with consent of parties).Google Scholar

37 Henderson, supra note 35, at 164–73, 189; Simkins, supra note 35, at 586.Google Scholar

38 See, e.g., Henderson, supra note 35, at 174–77.CrossRefGoogle Scholar

39 See Simkins, supra note 35, at 584–85; 2 Bates, supra note 33, at 793–94; cf. Henderson, supra note 35, at 162–63, 169–77. References of entire cases based on the consent of the parties also became more popular in the latter half of the nineteenth century. See Kimberly v. Arms, 129 U.S. 512, 524–25 (1889) (also suggesting that reference of an entire case over the objection of the parties was not normally proper).Google Scholar

40 See Rules 83 and 84 of the Federal Equity Rules in effect between 1866 and 1911 in James Love Hopkins, ed., The New Federal Equity Rules Promulgated by the United States Supreme Court at the October Term 1912, at 132–33 (8th ed. rev. by Byron F. Babbitt, Cincinnati: W.H. Henderson Co., 1933).Google Scholar

41 Cf. 2 Bates, supra note 33, at 794; Simkins, supra note 35, at 602–4; Wallace R. Lane, Federal Equity Rules, 35 Harv. L. Rev. 276, 295–96 (1922).Google Scholar

42 See Ralph W. Breckenridge, The Federal Equity Practice, 5 Ill. L. Rev. [now Nw. U.L. Rev.] 545, 547–50 (1911); Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 706–7 (1927); cf. 3 George Foster Longsdorf, Cyclopedia of Federal Procedure 447–50 & n.19 (Chicago: Callaghan & Co., 1928).Google Scholar

43 Bates, supra note 33, at 113–44, 431; Henderson, supra note 35, at 107–26; 1 Roger Foster, Federal Practice, Civil and Criminal 750–80 (6th ed. Chicago: Callaghan & Co., 1920); Robert W. Millar, The Mechanism of Fact-Discovery: A Study in Comparative Civil Procedure, 32 Ill. L. Rev. [now Nw. U.L. Rev.] 424, 437–50 (1937); Simkins, supra note 35, 265–83, 429–30 (noting, at 266, a trend toward simplification of equity pleading even before 1912).Google Scholar

44 Simkins, supra note 35, at 581–82.Google Scholar

45 Id. at 286–89, and 1 Bates, supra note 33, at 123–35.Google Scholar

46 1 Bates, supra note 33, at 308; cf. Henderson, supra note 35, §§ 198–210.Google Scholar

47 See Rules 67–69 of the Federal Equity Rules in effect between 1866 and 1911 in Hopkins, supra note 40, at 119–22; see also Simkins, supra note 35, at 513–53; 1 Bates, supra note 33, at 445–67.Google Scholar

48 See generally Simkins, supra note 35, at 521–43, 561–63; Breckenridge, supra note 42, at 548–49; United States v. United Shoe Mach. Co., 198 F. 870, 874 (D. Mass. 1912).Google Scholar

49 See McCabe, supra note 1, at 345.Google Scholar

50 1 Bates, supra note 33, at 451–58; Simkins, supra note 35, at 515–20, 549–51.Google Scholar

51 3 Greenleaf, supra note 33, at 305–6; cf. Zych v. American Car & Foundry Co., 127 F. 723 (C.C.E.D. Mo. 1904).Google Scholar

52 I have not been able to determine how often, in the period before 1912, masters were involved in depositions or other evidentiary exercises in cases that did not involve reference of major substantive issues or trial itself.Google Scholar

53 See Reflectolyte Co. v. Edwin F. Guth Co., 31 F.2d 777, 778 (E.D. Mo. 1927), where, during a discussion of Rule 47 of the Equity Rules of 1912 (supra note 14), the court observed:. On this point the effect of rule 47, and other rules which are germane, was to change the practice as to testimony on the trial on the merits of equity actions. Theretofore an equity case was usually heard on the merits on depositions taken before examiners appointed by the court. The oral examination of a witness in open court on final hearing in an equity case was, before the adoption of the present rules in equity, the exception and not the rule or practice. This practice then applied to witnesses, whether they were within or without the provisions of section 863, Revised Statutes. See also Armistead M. Dobie, Handbook of Federal Jurisdiction and Procedure 716 (St. Paul, Minn.: West Publishing Co., 1928); 7 William J. Hughes, Federal Practice, Jurisdiction and Procedure 242–60 (St. Paul, Minn.: West Publishing Co., 1931); 2 Bates, supra note 33, at 724–27; Simkins, supra note 35, at 556–57; Rose, supra note 32, at 491–92; Clark, Charles E. & Stone, Ferdinand F., Review of Findings of Fact, 4 U. Chi. L. Rev. 190, 204 (1937).Google Scholar

54 3 Longsdorf, supra note 42, at 902–3, 909–12.Google Scholar

55 Breckenridge, supra note 42, at 546–50; Wallace R. Lane, One Year Under the New Federal Equity Rules, 27 Harv. L. Rev. 629, 630–34 (1914) [hereinafter cited as Lane, One Year]; id., Twenty Years Under the Federal Equity Rules, 46 Harv. L. Rev. 638, 640 (1933) [hereinafter cited as Lane, Twenty Years]; 3 Longsdorf, supra note 42, at 445–50, 902–3; cf. Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 706–7 (1927).Google Scholar

56 226 U.S. 627 (1912).Google Scholar

57 226 U.S. 629 (1912).Google Scholar

58 Dixie Drinking Cup Co. v. Paper Utils. Co., 5 F. 2d 322, 323–24 (E.D.N.Y. 1925); Rose, supra note 32, at 483–92; Dobie, supra note 53, at 716; Alexander Holtzoff, New Federal Procedure and the Courts 4 (Chicago: American Bar Association, 1940).Google Scholar

59 Rose, supra note 32, at 483–84; 3 Longsdorf, supra note 42, at 446–71; Lane, One Year, supra note 55, at 634–35.Google Scholar

60 Luten v. Camp, 221 F. 424, 427 (E.D. Pa. 1915); Dobie, supra note 53, at 723, 728; 1 Foster, supra note 43, at 752–54; Millar, supra note 43, at 449–50.Google Scholar

61 Under new Equity Rule 56, cases were automatically forced onto the trial calendar after the periods for taking evidentiary depositions (as prescribed by Rule 47) expired. Rule 57 attempted to attack procrastination by counsel and court by limiting continuances. 226 U.S. 664–65 (1912). See also Lane, One Year, supra note 55, at 629–30, and id., Working Under Federal Equity Rules, 29 Harv. L. Rev. 55, 71–72 (1915) [hereinafter cited as Lane, Working].Google Scholar

62 I say “back” into the central adjudicatory role because the reformers in 1912 believed that the major changes affected by the new rules would reestablish the practices of the period prior to promulgation of the equity rules of 1842. See 7 Hughes, supra note 53, at 242–44; 3 Longsdorf, supra note 195, at 909–12; Hopkins, supra note 40, at 249–50; Clark & Stone, supra note 53, at 203–4.Google Scholar

63 See Computing Scale Co. v. Toledo Computing Scale Co., 279 F. 648, 672 (7th Cir. 1921); Breckenridge, supra note 42, at 545; cf. Lane, supra note 41, at 278–79.Google Scholar

64 See 1912 Equity Rules 51 and 58, supra note 14, at 663, 665–66; Luten v. Camp, 221 f. 424 (E.D. Pa. 1915); Dixie Drinking Cup Co. v. Paper Utils. Co., 5 F.2d 322 (E.D.N.Y. 1925); Dobie, supra note 53, at 721, 724.Google Scholar

65 See 1912 Equity Rule 59, supra note 14, at 66, discussed infra at pp. 155–56.Google Scholar

66 See id. Rules 46 and 47, at 661–62; Rose, supra note 32, at 491–92.Google Scholar

67 Los Angeles Brush Mfg. Corp. v. James, 272 U.S. at 706–7; Dobie, supra note 53, at 716; 2 Longsdorf, supra note 42, at 748–49; 3 id. at 902–3, 909; W. S. Simkins, Simkins Federal Practice, 709–10, (rev. ed. by Alfred J. Schweppe, Rochester, N.Y.: Lawyers Cooperative Publishing Co., 1934); cf. Anchor Brewing Co. v. U.S., 5 F.2d 883 (3d Cir. 1925); North v. Herrick, 203 F. 591, 592 (N.D.N.Y. 1913).Google Scholar

68 1912 Equity Rule 46, supra note 14, at 661.Google Scholar

69 I discuss these statutes infra at p. 156. See also Dern v. Tanner, 60 F.2d 626, 627 (D. Mont. 1932); Iowa Washing Mach. Co. v. Montgomery Ward & Co., 227 F. 1004, 1007 (S.D.N.Y. 1915).Google Scholar

70 1912 Equity Rule 47, supra note 14, at 661–62.Google Scholar

71 Id.Google Scholar

72 Former 28 U.S.C. § 639 (West compact ed., as amended through Dec. 3, 1928).Google Scholar

73 Id, § 644.Google Scholar

74 See, e.g., M. Whitmark & Sons v. Calloway, 22 F.2d 412, 414 (E.D. Tenn. 1927).Google Scholar

75 1912 Equity Rule 51, supra note 14, at 663.Google Scholar

76 Hopkins, supra note 40, editor's note at 259.Google Scholar

77 3 Longsdorf, supra, note 42, at 940–41.Google Scholar

78 Reflectolyte Co. v. Edwin F. Guth Co., 31 F.2d 777, 778 (E.D. Mo. 1927); Lane, Working, supra note 61, at 70–71.Google Scholar

79 See 1912 Equity Rule 52, supra note 14, at 663; Lane, Working, supra note 61, at 71; Simkins, supra note 67, at 713–14, 733–49.Google Scholar

80 Los Angeles Brush Mfg. Corp. v. James, 272 U.S. at 706–7; Rose, supra note 32, at 498.Google Scholar

81 See Rollman Mfg. Co. v. Universal Hardware Works, 229 F. 579, 580–81 (E.D. Pa. 1916); North v. Herrick, 203 F. 591, 592 (N.D.N.Y. 1913); Henderson, supra note 35, at 174–77; cf. Lane, supra note 41, at 296; and id., Twenty Years, supra note 55, at 642–43, 654–55.Google Scholar

82 Cf. Computing Scale Co. v. Toledo Computing Scale Co., 279 F. 648, 672–73 (7th Cir. 1921).Google Scholar

83 Cf. Lane, supra note 41, at 296; Cruz v. Hauck, 515 F.2d 322, 329–30 (5th Cir. 1975). The source and scope of this presumed “right” is unclear.Google Scholar

84 Los Angeles Brush Mfg. Corp. v. James, 272 U.S. at 706–7.Google Scholar

85 1912 Equity Rule 59, supra note 14, at 666.Google Scholar

86 See Lane, Working, supra note 61, at 59; id., supra note 41, at 291, 296–97; and id., Twenty Years, supra note 55, at 642–43, 652, 654.Google Scholar

87 Cf. North v. Herrick, 203 F. 591, 592 (N.D.N.Y. 1913); Anchor Brewing Co. v. U.S., 5 F.2d 883 (3d Cir. 1925); Lane, Twenty Years, supra note 55, at 654–55.Google Scholar

88 Since the Federal Rules of Civil Procedure authorized a substantial expansion of discovery practice, if“Rule 53 authorized delegation of responsibility for discovery to masters, it would be arguable that the Advisory Committee foresaw an expansion of masters' roles in this arena. As I suggest in the next section, however, the drafters of the rules apparently did not expect federal judges to involve masters in the discovery stage.Google Scholar

89 As the footnotes accompanying the text in this section indicate, my impressions about discovery and the roles masters played in civil actions prior to 1938 are based largely on secondary sources, including contemporary treatises on federal practice, law review articles, and reported cases. I have made no effort to examine firsthand the administrative or docket records of federal courts from this period. Nor have I tried to interview litigators who practiced in federal courts before 1938.Google Scholar

90 Some commentators have gone so far as to suggest that there was virtually no discovery in suits at common law in federal courts before 1938. See, e.g., Resnick, Judith, Managerial Judges, 96 Harv. L. Rev., 374, 392 (1982); George Ragland, Jr., Discovery Before Trial 269 (Chicago: Callaghan & Co., 1932); Sunderland, Edson R., The New Federal Rules, 45 W. Va. L.Q. 5, 19–20 (1938). As the discussion in the text will suggest, I believe that these generalizations overstate the matter.Google Scholar

91 The exception was the equitable bill of discovery, which at least in theory remained available to litigants in suits at common law in federal courts. See Simkins, supra note 67, at 95. I describe the preconditions for resorting to this device, and the scope of its utility, in the text at pp. 158–60 infra.Google Scholar

92 Simkins, supra note 67, at 99–100, 768.Google Scholar

93 Id. at 750–51, 776; Sunderland, supra note 90, at 19.Google Scholar

94 Sunderland, supra note 90, at 19.Google Scholar

95 Ragland's study of discovery, supra note 90, described the federal statutes that provided for evidentiary depositions but made no effort to systematically measure the frequency of their use. See id. at 269–70. I know of no effort to assess empirically how extensively depositions or discovery devices were used before 1938.Google Scholar

96 One exception is Zych v. American Car & Foundry Co., 127 F. 723 (C.C.E.D. Mo. 1904). This case initially was filed in state court in Missouri, where a statute provided that courts could appoint a “special commissioner” to preside at and resolve disputes arising in a deposition. See Res. Mo. § 1759 (1929) and its precedessor, Res. Mo. § 2136 (1885). In Zych, the court concluded that a federal statute authorized the federal court to adopt this state procedure. See former 28 U.S.C. § 643 (1928), supra note 72.Google Scholar

97 See, e.g., 2 Longsdorf, supra note 42, at 782–78, 814; 6 Hughes, supra note 53, at 472–82.Google Scholar

98 See McLennan v. Kansas City, St. J. & C.B.R., 22 F. 198 (C.C.S.D. Iowa 1884).Google Scholar

99 Ragland, supra note 90, at 98.Google Scholar

100 Missouri, New Hampshire, Nebraska, and Ohio empowered notaries to compel answers by attachment for contempt. Ragland, supra note 90, at 110. In New York, Rule 142 of the Rules of Civil Practice provided for the appointment of a “Referee to superintend discovery or inspection.” Under this rule, such an appointee could be ordered to “direct and superintend” the discovery event, and his certification of it was deemed presumptive “evidence of compliance or non-compliance with the order” compelling the discovery. See Fallon, Perlie P., The Production, Discovery and Inspection of Written Evidence in New York, 17 Cornell L.Q. 248, 250 n.10 (1932).Google Scholar

101 Ragland, supra note 90, at 97–100, 104.Google Scholar

102 Ragland, supra note 90, at 104–6.Google Scholar

103 See Sinclair Ref. Co. v. Jenkins Petroleum Process Co., 289 U.S. 689 (1933); Pressed Steel Car Co. v. Union Pac. R., 240 F. 135 (S.D.N.Y. 1917); 2 Foster, supra note 43, at 1750–54.Google Scholar

104 See Judge Learned Hand's second opinion in Pressed Steel Car Co. v. Union Pac. R., 241 F. 964, 967 (S.D.N.Y. 1917), where he observed:. The plaintiff will have leave to frame and keep reframing interrogatories till it has extracted from the defendant all the information which it possesses. Much the most convenient way would be for the parties to agree upon a master and allow the plaintiff an oral examination. This, however, I cannot compel; but the same result may probably be obtained, though it must be confessed with the maximum of expense in time and labor, by allowing interrogatories to be renewed as often as justice requires. If that does not serve, the plaintiff must rely upon such rights as he will have at the trial under Revised Statutes, § 724 (Comp. St. 1916, § 1469). Neither the reported cases nor the treatises I have consulted suggest that parties commonly agreed to a deposition procedure like the one proposed by Judge Hand.Google Scholar

105 See 3 Longsdorf, supra note 42, at 898–99; Simkins, supra note 67, at 94–95.Google Scholar

106 Cf. Bradford v. Indiana Harbor Belt R., 300 F. 78 (7th Cir. 1924).Google Scholar

107 In Sinclair Ref. v. Jenkins Petroleum Process Co., 289 U.S. 689 (1933), the Supreme Court, speaking through Justice Cardozo, seemed to approach a request for a bill of discovery in a much more liberal spirit than was reflected in other opinions on the subject. See, e.g., Bradford v. Indiana Harbor Belt R., 300 F.78 (7th Cir. 1924); 2 Foster, supra note 43, at 1753–54; 3 Longsdorf, supra note 42, at 898–99. Cardozo's relative liberality anticipated the spirit of the discovery provisions that were incorporated five years later into the Federal Rules of Civil Procedure. His attitude may have been in part a product of experience with the provisions for discovery in New York.Google Scholar

108 Under traditional views, a party responding to interrogatories served under a bill of discovery in aid of an action at law generally would be required to disclose only ultimate facts (as opposed to mere evidence) and only those facts which the discovering party needed (but could not otherwise acquire) in order to prove his case or to establish his affirmative defense. Bills of discovery could not be used to gather information about how an opponent intended to prove his case. See Sinclair Ref. Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 697 (1933), cf. Carpenter v. Winn, 221 U.S. 533, 540 (1911); Durant v. Goss, 12 F.2d 682, 683 (6th Cir. 1926); Galion Iron Works Co. v. Ohio Corrugated Culvert Co., 244 F. 427 (6th Cir. 1917); General Film Co. v. Sampliner, 232 F. 95 (6th Cir. 1916); Window Glass Mach. Co. v. Brookville Glass & Tile Co., 229 F. 833 (W.D. Pa. 1916).Google Scholar

109 See Pressed Steel Car Co. v. Union Pac. R., 240 F.135, 136–37 (S.D.N.Y. 1917); cf. Walter C. Clephane, Handbook of the Law of Equity Pleading and Practice, 66, 80–81, 92–93 (St. Paul, Minn.: West Publishing Co., 1926). There were, however, several reported cases in the two decades before adoption of the Federal Rules of Civil Procedure in which such bills of discovery were successfully employed. See, e.g., Sinclair Ref. Co. v. Jenkins Petroleum Process Co., 289 U.S. 689 (1933); Baush Mach. Tool Co. v. Aluminum Co. of Am., 63 F.2d 778 (2d Cir. 1933); Zolla v. Grand Rapids Store Equip. Corp., 47 F.2d 611 (S.D.N.Y. 1930); Trophy Tower Sales Corp. v. Gillette Safety Razor Co., 5 F. Supp. 900 (S.D.N.Y. 1934); Puget Sound Navigation Co. v. Assoc. Oil Co., 56 F.2d 605 (W.D. Wash. 1932).Google Scholar

110 The cases cited in supra note 109 indicate that disputes about discovery under equitable bills were not referred to masters but were taken directly to the trial court for resolution. I also should emphasize that under Rule 51 of the 1912 Federal Equity Rules, supra note 12, the examiner or officer before whom a deposition was taken had no power to rule on “the competency or materiality or relevancy of the questions.” This rule presumably did not apply directly to bills of discovery in aid of actions at law, as depositions could not be ordered under such bills.Google Scholar

111 Pressed Steel Car Co. v. Union Pac. R. Co., 240 I. 135, 137 (S.D.N.Y. 1917).Google Scholar

112 1912 Equity Rules 59–68, supra note 14, at 666–69. My inference that in this period masters were used only for conventional, trial-stage references is supported by a statement submitted by Challon B. Ellis to the Committee on the Judiciary of the United States House of Representatives during hearings about the proposed Federal Rules of Civil Procedure. Discussing proposed Rule 16 (about pretrial conferences), Ellis said:. Such a rule is likely to increase rather than diminish the expense of trial. It is suggested in defense of this rule, that it will be, in actual practice, administered through the appointment in each case of a master to call the parties together to say “what it is all about” and discuss the defects in their pleadings and their plans for conducting the trial before the court. It is said, as we understand it, that this is the way such a practice is carried on in England and that the judge will thus be relieved of the burdens that are imposed upon him. Such a simple way out of the matter may well be questioned. There is nothing in the rules authorizing the master to take the place of the judge, except in case of the regular well-known reference of the entire case or a part of it, to take testimony, state an account, etc. But suppose there is this simple way out. The master has to be paid; why should the attorneys have to pay a master to hear their discussions about the pleadings when the judge is already paid a salary to do this very thing in open court. If every case may be referred to a master, even without the will of the parties, we have greatly increased the expense of a trial of law suits. The parties are entitled to a decision by a court and they are not to be remitted to trial and decision by some individual not having the responsibility of a judge. The familiar procedure of appointment of masters under certain circumstances and in any certain cases is hedged about by all kinds of restrictions and necessary protections. A master does not decide a case; he takes the place neither of the judge nor the jury; he simply hears for certain limited purposes certain testimony and makes a report of such testimony to the court. This is particularly true in a law case and even in an equity case, any action taken by the master, however broad his powers, does not preclude the consideration of the same evidence, the same objections, the same applications by the court. Rules Hearings, supra note 25.Google Scholar

113 Records of the deliberations of the Advisory Committee have been preserved in several places. One is the Federal Records Center in Suitland, Maryland. The materials there collected have not been organized or digested but are substantial in volume (some 50 cartons) and include at least some transcripts of Advisory Committee meetings. These materials were placed under seal by Chief Justice Charles Evans Hughes in 1938 and remain inaccessible to the general public. Scholars who wish to examine these papers must first secure permission from the Chief Justice of the United States Supreme Court. To date, no scholar has been permitted to quote any portion of these records. A second source of records of Advisory Committee deliberations is more accessible and usable. The Charles E. Clark Papers are preserved in the Manuscripts and Archives Division of the Sterling Memorial Library at Yale University. These papers have been well organized and inventoried. They include some 38 boxes of materials relating to Judge Clark's service on the Advisory Committee between 1935 and 1956. These materials include transcripts and minutes of the committee's proceedings, suggestions received by the committee, correspondence, abstracts, reports, and memoranda, as well as tentative and preliminary drafts of rules. This collection represents an extremely valuable research source for scholars interested in the history of the Federal Rules of Civil Procedure. A Register of the Clark Papers (Manuscript Group Number 1344) was completed in March 1982 and is available from the Manuscripts and Archives Division of the Sterling Memorial Library. I cite these papers in subsequent footnotes as Clark Papers. All of the materials about committee proceedings that I discuss or quote in this article are from the Clark Papers. Less complete collections of documents from the Advisory Committee's work are described in Stephen B. Burbank, The Rules Enabling Act of 1934, 130 Penn. L. Rev. 1015, 1132–33 n.529 (1982).Google Scholar

114 The Advisory Committee published two preliminary drafts of the proposed rules, one in May 1936 and the second in April 1937. These drafts were published in pamphlet form and circulated within the profession for comment. See Advisory Committee on Rules for Civil Procedure, Preliminary Draft of Rules of Civil Procedure for the District Courts of the United States and the Supreme Court of the District of Columbia (May 1936) [hereinafter cited as Preliminary Draft]; Report of the Advisory Committee on Rules for Civil Procedure, Proposed Rules of Civil Procedure for the District Courts of the United States (April 1937) [hereinafter cited as Proposed Rules]. After receiving comments and suggestions, the committee made many changes (primarily in form) in the Proposed Rules. These changes were incorporated in a Final Report of the Advisory Committee on Rules for Civil Procedure (published in pamphlet form in Nov. 1937) [hereinafter cited as Final Report]. During the course of its deliberations the committee also considered several unpublished tentative drafts of the rules, especially in late 1935 and early 1936, before it published the Preliminary Draft.Google Scholar

115 Appointment of Committee to Draft Unified System of Equity and Law Rules, Order, ch295 U.S. 774, 775 (1935) [hereinafter cited as Order of Appointment]. Clark subsequently become chief judge of the United States Court of Appeal for the Second Circuit.Google Scholar

116 See supra note 113.Google Scholar

117 See Rule 90 et seq. (Tent. Draft I, unpublished Oct. 25, 1935), Box 97, Clark Papers, supra note 113.Google Scholar

118 The full text of proposed Rule 90, and the note accompanying it, read as follows:. Rule 90. Reference to Master—Exceptional, Not Usual. Save in matters of account, a reference to a master, which in these rules includes a referee or an auditor shall be the exception, not the rule, and shall be made in jury cases only to simplify the issues where such are complicated, and in non-jury cases only upon a showing that some exceptional condition requires it. When such a reference is made, the party at whose instance or for whose benefit it is made shall cause the order of reference to be presented to the master for a hearing within twenty (20) days succeeding the time when the reference was made, unless a longer time be specially granted by the court; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. Note. See Equity Rule 59. Id.Google Scholar

119 My inference that the response was not written at the same time as the question is based on the fact that the pencil lines in the response are much sharper and thinner than the lines in the question, suggesting that a different (or at least sharpened) pencil was used to write the response.Google Scholar

120 Rule 90, supra note 117.Google Scholar

121 Order of Appointment, supra note 115.Google Scholar

122 See Report of the Advisory Committee in Proposed Rules, supra note 114, at vii.Google Scholar

123 See, e.g., comments by Robert G. Dodge, of Boston, in vol. 3, pp. 730–31, Proceedings for Feb. 22, 1936, Folder 10, Box 95, Clark Papers, supra note 113.Google Scholar

124 Order of Appointment, supra note 115.Google Scholar

125 Id.; Order of Jan. 17, 1938, Re Rules of Procedure, 302 U.S. 783–84 (1938). Wickersham had been attorney general of the United States in the Taft administration. He died Jan. 25, 1936. See 1 Who Was Who in America, 1897–1942, at 1342.Google Scholar

126 Vol. 1, p. 252, Proceedings for Nov. 4, 1935, Box 94, Clark Papers, supra note 113.Google Scholar

127 Id.Google Scholar

128 See, e.g., comments by Robert G. Dodge in Proceedings for Feb. 22, 1936, supra note 123.Google Scholar

129 Order of Appointment, supra note 115.Google Scholar

130 Proceedings for Feb. 22, 1936, supra note 123, at 727, 735.Google Scholar

131 Id. at 727.Google Scholar

132 Under Equity Rules 49 and 51, examiners before whom depositions were taken had no authority to exclude evidence or to rule that a deponent need not answer a question. See Dobie, supra note 53, at 721.Google Scholar

133 The note that Sunderland subsequently wrote for the rule that would have authorized delegating this power to masters cited George Ragland's monograph (supra, note 90) and acknowledged its discussion of the roles masters could play in depositions in state courts in Wisconsin and Missouri. Sunderland was quite familiar with Ragland's work; he wrote the foreword for Ragland's monograph and apparently supervised Ragland's research, which was conducted from the Law School of the University of Michigan where Sunderland was professor of legal research. See Edson R. Sunderland, Foreword to Ragland, supra note 90, at iii–iv.Google Scholar

134 Proceedings for Feb. 22, 1936, supra note 123, at 727, 735.Google Scholar

135 Id. at 750.Google Scholar

136 Rule 30, Officers Before Whom Depositions May Be Taken. Letters Rogatory, subparagraph (d) and notes thereto (Tent. Draft II, unpublished, Jan. 13, 1936), Box 98, Clark Papers, supra note 113.Google Scholar

137 Id.Google Scholar

138 Id.Google Scholar

139 Proceedings for Feb. 22, 1936, supra note 123, at 727.Google Scholar

140 Order of Appointment, supra note 115.Google Scholar

141 Proceedings for Feb. 22, 1936, supra note 123, at 729.Google Scholar

142 Id.Google Scholar

143 Id. at 729–30.Google Scholar

144 Id. at 730.Google Scholar

145 Id.Google Scholar

146 Order of Appointment, supra note 115.Google Scholar

147 Proceedings for Feb. 22, 1936, supra note 123, at 730–31.Google Scholar

148 Id. at 731–43.Google Scholar

149 Id. at 731–34.Google Scholar

150 Id. at 735.Google Scholar

151 Id.Google Scholar

152 Id.Google Scholar

153 Id.Google Scholar

154 Order of Appointment, supra note 115.Google Scholar

155 Proceedings for Feb. 22, 1936, supra note 123, at 735.Google Scholar

156 Id.Google Scholar

157 Id. at 760–61.Google Scholar

158 Rule 32(b), Preliminary Draft, supra note 114, at 60–61.Google Scholar

159 See supra notes 117–18 and accompanying text.Google Scholar

160 The Report of the Advisory Committee that accompanied the Proposed Rules, supra note 114, at vii, states:. The rules, other than those on depositions, discovery, and summary judgments, were drafted under (he supervision of Charles E. Clark, the Reporter, on whose staff James William Moore, Joseph M. Friedman, and others have rendered, valuable service. Edson R. Sunderland supervised the draft on depositions, discovery, and summary judgments.Google Scholar

161 Rule A12 (Tent. Draft II, Dec. 26, 1935), Box 98, Clark Papers, supra note 113 (the tentative number of this rule, A12, was crossed out, and the number 54 inserted above it, in the draft in the Clark Papers) (emphasis added).Google Scholar

162 Id. (emphasis added).Google Scholar

163 Proceedings for Feb. 5, 1936, vol. 12, p. 1069, Box 95, Clark Papers, supra note 113.Google Scholar

164 Id. (emphasis added).Google Scholar

165 Id. at 1069–70.Google Scholar

166 Rule A13, Reference to Master—Exceptional, Not Usual (Tent. Draft III, Mar. 1936), Box 98, Clark Papers, supra note 113.Google Scholar

167 1912 Equity Rule 59, supra note 14, at 666.Google Scholar

168 Rule 30(d), supra note 136.Google Scholar

169 1912 Equity Rule 59, supra note 14, at 666.Google Scholar

170 Note to paragraph (d), Rule 30, supra note 136.Google Scholar

171 See text accompanying supra notes 163–64.Google Scholar

172 The relevant rule was renumbered and rearranged in the March 1936 redraft. What had been Rule 30(d) appeared as Rule 33(b). What follows are the full texts of this paragraph, and the note to it, as Sunderland wrote them for the March 1936 draft:. Rule 33 … (b) ‘Before a Master [in pencil] When notice is served for taking the deposition by oral examination of any party, or of an officer, director, agent or employee of any party, the court in which such action is pending may, on motion promptly made by such party on good cause shown, make an order directing that such deposition shall be taken before a standing master of the court or a special master appointed for that purpose, and authorizing such master to rule on the admission of evidence. The order shall fix the master's fees and they shall be advanced by the moving party. Note:. (b) The provision for reference to a master is for the purpose of protecting parties from oppression in cases where there is reason to believe that the examination is likely to include matters not properly subject to discovery. It is introduced as a safeguard on account of the unlimited right of discovery given by Rule 32. Rule 33(b) (Tent. Draft III, Mar. 1936), Box 98, Clark Papers, supra note 113.Google Scholar

173 Id.Google Scholar

174 Rule 32(b), Preliminary Draft, supra note 114.Google Scholar

175 In addition to the Proposed Rules (April 1937) and Final Report (Nov. 1937), supra note 114, see Hammond, supra note 25, at 633.Google Scholar

176 Fed. R. Civ. P. 53, originally published in 308 U.S. 645, 727–31 (1939).Google Scholar

177 Hammond, supra note 25, at 632.Google Scholar

178 Report of the Advisory Committee, in Proposed Rules, supra note 114, at vii.Google Scholar

179 Hammond, supra note 25.Google Scholar

180 Id. at 632.Google Scholar

181 Id. During the Advisory Committee's debate over this proposal, Morgan had declared:. I want the situation so that the answer of the witness is somehow preserved, so that the deposition will not go for naught on the particular thing. If it is a hard fought case before a master, it will be an exceptional master who does not make errors in his rulings on evidence. Proceedings for Feb. 22, 1936, supra note 123, at 735.Google Scholar

182 Hammond, supra note 25, at 632.Google Scholar

183 See, e.g., Ilsen, Werner, The Preliminary Draft of the Federal Rules of Civil Procedure, 11 St. John's L. Rev. 212, 233–34 (1937).Google Scholar

184 Conboy, Martin, Depositions, Discovery and Summary Judgments, 22 A.B.A.J. 881, 883–84 (1936).Google Scholar

185 Id.Google Scholar

186 Proceedings for Oct. 22–27, 1936, Folder 15, Box 96, at 58–61, Clark Papers, supra note 113. Unfortunately, these parts of the minutes of the committee's meetings do not record substantive discussion and therefore do not expose the specific motivation that led individual members to vote for this important change.Google Scholar

187 Cf. Hammond, supra note 25, at 632, and Johnson, Hubert Dee, Depositions, Discovery, and Summary Judgments Under the Proposed Uniform Federal Rules, 16 Tex. L. Rev. 191, 196 (1938).Google Scholar

188 Rule 30, Rules of Civil Procedure for the District Courts of the United States, 308 U.S. 645, 700–704 (1939).Google Scholar

189 In 1938, during a symposium held for the purpose of explaining (he new rules, Edson R. Sunderland pointed out that under what was then § 301 of New York's Civil Practice Act a deposition could be “taken before an attorney or counsellor-at-law.” He then declared, without elaboration: “That would not be permissible under the federal rules.” See statement of Edson R. Sunderland in Edward H. Hammond, ed., Federal Rules of Civil Procedure, Proceedings of the Institute at Washington, D.C., and of the Symposium at New York City, Oct. 17–19, 1938, at 257 (Chicago: American Bar Association, 1939). It appears that when attorneys presided at depositions under this New York statute they had no greater authority than a notary and were not empowered to rule on the propriety of questions or to compel answers. In 1962 the Civil Practice Act was replaced by the New York Civil Practice Law and Rules, Rule 3113 of which replaced § 301 of the Civil Practice Act. Rule 3113 dropped attorneys and counselors at law from the list of persons before whom depositions could be taken. See Book 7B, Civil Practice Law and Rules, Consolidated Laws of N.Y., Annotated (Edward Thompson Co. 1963) Rule 3113 and accompanying Practice Commentary by Caesar L. Pitassy & William J. Ryan, at 230–32. See also Sackren v. Smirnow, 63 N.Y.S.2d 224, 225 (Kings County Sup. Ct. 1946). There is post-1938 precedent in New York courts for appointing a “Referee” to “preside at all depositions, determine the order and extent of participation therein by counsel … and, subject to the order of the court, rule in the first instance upon all objections and motions relating to depositions.” According to the New York court that approved delegating this authority to a referee: “This procedure would avoid the duplication, confusion and harassment necessarily involved in the taking of the numerous and lengthy depositions contemplated by counsel under the unusual conditions of joint examinations conducted by [several] counsel.” Armstrong v. Doyle, 20 Misc.2d 1091, 1092–93 (N.Y. County Sup. Ct. 1959).Google Scholar

190 See Proceedings for Nov. 4, 1935, supra note 126, at 252, showing Wickersham and Robert G. Dodge supporting efforts to copy the English use of standing masters, but Mitchell warning that Congress was not likely to appropriate funds to pay such officers. The Advisory Committee received at least one statement of opposition to this idea. See Suggestions of Local Committees, Preliminary and Informal Report of Frederic R. Kellog, Chairman, S.D. New York, Commenting on Rule 38 of Tentative Draft I, Box 97, Clark Papers, supra note 113. Kellog wrote:. Tentatively, 1 feel [the English system of Summons for Directions] is not applicable to our American conditions or our American practice. It would, to my personal knowlege, have worked injustice in certain litigation with which I have been connected, the mechanism of which could not possibly have adequately been determined within a few days after joinder of issue, even by a trained master. And we have no trained masters. Possibly the feeling which I entertain is more applicable in cases arising in the sparsely populated regions of certain of our middle western and other states.Google Scholar

191 See statement of Edson R. Sunderland in American Bar Association, supra note 12, at 295–98; see also Mitchell, William C., Some of the Problems Confronting the Advisory Committee in Recent Months—Commencement of Actions—Effect of Findings of Fact in Cases Tried by Court Instead of Jury, Etc., 23 A.B.A. J. 966, 967–70 (1937); Testimony by Edgar B. Tolman, in Rules Hearings, supra note 25, at 106–7; and statement of Challon B. Ellis, id. at 147–50.Google Scholar

192 Cf. Mitchell, supra note 191, at 970; Proceedings of Nov. 4, supra note 126, at 252.Google Scholar

193 Mitchell, supra note 191, at 970; also seeBiggs, John Jr., A System of Masters, 23 F.R.D. 563 (1958); Zavatt, Joseph C., The Use of Masters in Aid of the Court in Interlocutory Proceedings, 22 F.R.D. 283 (1958). For a comprehensive description of the roles masters play in modern English procedure, see generally Silberman, Part I, supra note 1.Google Scholar

194 United States commissioners were the only even remotely comparable officers, but they rarely played significant roles in civil adjudication. See McCabe, supra note 1, at 345–47.Google Scholar

195 Mitchell, supra note 191, at 970. Also see Proceedings of Nov. 4, supra note 126, at 252.Google Scholar

196 Mitchell, supra note 191, at 970.Google Scholar

197 After the Advisory Committee concluded that it could not submit rules authorizing judges to delegate pretrial duties to standing masters, Mitchell urged Congress to enact legislation creating the office of standing master. See Mitchell, supra note 191, at 970; testimony of Edgar B. Tolman (Secretary of the Advisory Committee), Rules Hearings, supra note 25, at 106–7.Google Scholar

198 Fed. R. Civ. P. 16.Google Scholar

199 Id. See also the Advisory Committee's original Note to Rule 16, reproduced in 12 Wright & Miller, supra note 25, at 396 appendix C.Google Scholar

200 Silberman, Part II, supra note 1, at 1322–24.Google Scholar

201 Nathan, Vincent M., The Use of Masters in Institutional Reform Litigation, 10 U. Toi. L. Rev. 419, 428 (1979). Nathan's article focuses on using masters to monitor or implement equitable decrees. He suggests that such uses of masters may fall outside the reach of Rule 53 and its exceptional condition requirement. Id. at 423–33. He does not squarely address our question about whether the rule serves as authority to delegate tasks to masters during the pretrial discovery period.Google Scholar

202 Kaufman, supra note 10, at 455 n.18. Unfortunately, Judge Kaufman did not detail the reasoning behind his views on these matters. And despite his belief that Rule 53 was not designed to authorize references of discovery matters, Kaufman argued that one of the policies reflected in Rule 53(b), that references should be the exception and not the rule, should apply to all appointments of masters, regardless of the task assigned or the stage of litigation involved. Id. at 455 n.18, 462, 464–65.Google Scholar

203 Id. at 462, 465.Google Scholar

204 See, e.g., Special Project, The Remedial Process in Institutional Reform Litigation, 78 Colum. L. Rev. 784, 831 (1978); Silberman, Part II, supra note 1, at 1342–43; Comment, Developments, supra note 10, at 1004; Comment, supra note 1, 798 n.130, 800 & n.141 (focusing in both places on whether Rule 53's requirements apply to magistrates to whom a judge delegates tasks that fall outside the conventional trial-stage reference).Google Scholar

205 The current version of Rule 53 is set forth in full in the appendix to this article. The Advisory Committee's proposed amendments to this Rule, none of which would answer the basic questions addressed in the text, can be found in the following places: Advisory Committee on Civil Rules, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, Note to Rule 53 (June 1981), published in pamphlet form and bound with the advance sheet versions of 101 S. Ct. (July 15, 1981); also published at 90 F.R.D. 451 (1981). After making modest changes in these proposed amendments, the Advisory Committee forwarded them to the Judicial Conference, which, in September 1982, approved the amendments and forwarded them to the United States Supreme Court for consideration.Google Scholar

206 Fed. R. Civ. P. 53(c), (d).Google Scholar

207 Id.Google Scholar

208 Fed. R. Civ. P. 53(e).Google Scholar

209 Fed. R. Civ. P. 53(b).Google Scholar

210 Id. (emphasis added).Google Scholar

211 Fed. R. Civ. P. 53(e)(3).Google Scholar

212 Fed. R. Civ. P. 53(e)(2).Google Scholar

213 Fed. R. Civ. P. 53(d)(2).Google Scholar

214 Fed. R. Civ. P. 53(a). As originally adopted, the part of paragraph (a) quoted in the text referred only to “a referee, an auditor, and an examiner.” 308 U.S. 728 (1938). The words “commissioner” and “assessor” were added to the list in 1966 as part of revisions “designed to preserve the admiralty practice whereby difficult computations are referred to a commissioner or assessor, especially after an interlocutory judgment determining liability.” See Advisory Committee's note to 1966 amendment of Rule 53, reproduced in 12 Wright & Miller, supra note 25, at 493 appendix C.Google Scholar

215 Fed. R. Civ. P. 53(c).Google Scholar

216 See Cohn, Sherman L., Federal Discovery: A Survey of Local Rules and Practices in View of Proposed Changes to the Federal Rules, 63 Minn. L. Rev. 253–54 (1979); Rosenberg, Maurice, & King, Warren R., Curbing Discovery Abuse in Civil Litigation: Enough Is Enough, 1981 B.Y.U. L. Rev. 579, 581.Google Scholar

217 Fed. R. Civ. P. Section VI, “Trials.”.Google Scholar

218 Fed. R. Civ. P., Section V, “Depositions and Discovery,” embraces Rules 26 through 37.Google Scholar

219 Fed. R. Civ. P. 52.Google Scholar

220 Fed. R. Civ. P. 52(a).Google Scholar

221 Fed. R. Civ. P. 16 is captioned “Pre-Trial Procedure; Formulating Issues.” This rule authorizes courts to convene pretrial conferences. It is located in Section III, “Pleadings and Motions.”.Google Scholar

222 Fed. R. Civ. P. 16 (emphasis added).Google Scholar

223 The Advisory Committee's note to the original version of Rule 16 suggests that the committee expected masters to be used under this rule in the same ways, and under the same guidelines, as set forth in Rule 53. The original note states: “In connection with clause (5) [the clause alluding to possible use of masters] of this rule, see Rules 53(b) (Masters; Reference) and 53(e)(3) (Master's Report: In Jury Actions).” See 12 Wright & Miller, supra note 25, at 396 appendix C. For an early example of the kind of use of a master contemplated in the original version of Rule 16 see Newcomb v. Universal Match Corp., 25 F. Supp. 169 (E.D.N.Y. 1938).Google Scholar

224 Exporte Peterson, 253 U.S. 300, 312 (1920); Hanna v. Plumer, 380 U.S. 460, 472–73, quoting Lumbermen's Mut. Casualty Co. v. Wright, 322 F.2d 759, 764 (5th Cir. 1963); see also Ruiz v. Estelle, 679 F.2d 1115, 1159–63 (5th Cir. 1982).Google Scholar

225 In a law review article, Judge Irving R. Kaufman has answered this question, without qualification, in the affirmative. Kaufman, supra note 10, at 462–63, 465. Unfortunately, he did not demonstrate how the authorities he cites support his conclusion. I undertake that task later in this section of the text. Another commentator, Vincent M. Nathan, has argued that at least in some situations federal courts have inherent authority to appoint masters. Nathan believes that Rule 53(b)'s requirements should not be strictly applied when, after a finding of liability in institutional reform litigation, a court uses a master to help fashion or implement a remedial decree. Nathan, supra note 201, at 423–32. Some admittedly indirect support for the view that federal trial courts have inherent power to delegate discovery tasks to special masters derives from the fact that when exercising its original jurisdiction the Supreme Court seems to have relied on its inherent authority when appointing masters to take evidence and recommend findings of fact and conclusions of law. While the Court has not explicitly acknowledged a reliance on inherent power in this context, its orders of reference have cited no statutory authorization for this procedure. See, e.g., Nebraska v. Iowa, 379 U.S. 996 (1965), and Mississippi v. Louisiana, 346 U.S. 862 (1953). In United States v. Raddatz, 447 U.S. 667, 683 n.11 (1980), the Court described its use of special masters in the following passage:. In exercising our original jurisdiction under Art. Ill, we appoint special masters who may be either Art. Ill judges or members of the Bar; the role of the master is, for these purposes, analogous to that of a magistrate. The master is generally charged to “take such evidence as may be … necessary,” Nebraska v. Iowa, 379 U.S. 996 (1965), and to “find the facts specially and state separately his conclusions of law thereon.” Mississippi v. Louisiana, 346 U.S. 862 (1953). In original cases, as under the Federal Magistrates Act, the master's recommendations are advisory only, yet this Court regularly acts on the basis of the master's report and exceptions thereto. Similarly, the Oklahoma Supreme Court has held that when it exercises exclusive original jurisdiction it has “inherent power to appoint a referee with authority to hear cases … and to report the evidence with his findings of fact and conclusions of law.” See Vliet, R. Dale, The Inherent Power of Oklahoma Courts and Judges, 6 Okla. L. Rev. 257, 270(1953). In Ruiz v. Estelle, 679 F.2d 1115, 1159–63 (5th Cir. 1982), the court suggested that “inherent power” was a sufficient premise for appointing a special master to help implement an equitable decree (after conclusion of the liability phase).Google Scholar

226 As I already have indicated supra at pp. 156–60, there wasn't a great deal of “discovery” in federal courts in the nineteenth and early twentieth century.Google Scholar

227 253 U.S. 300 (1920).Google Scholar

228 See Irving Trust Co. v. Trust Co., 75 F.2d 280, 282 (2d Cir. 1935); Veneri v. Draper, 22 F.2d 33, 35 (4th Cir. 1927); cf. Westchester Fire Ins. Co. v. Bringle, 86 F.2d 262, 263 (6th Cir. 1936) (dictum against backdrop of litigants' consent to the reference); Connecticut Importing Co. v. Frankfort Distilleries, 42 F. Supp. 225, 227 (D. Conn. 1940).Google Scholar

229 First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas & Elec. Co., 245 F.2d 613, 627 (8th Cir.), cert, denied, 355 U.S. 871 (1957); Schwimmer v. United States, 232 F.2d 855 (8th Cir. 1956).Google Scholar

230 253 U.S. at 304, 306.Google Scholar

231 Id. at 304–7.Google Scholar

232 Id. at 307.Google Scholar

233 Id. at 309.Google Scholar

234 Id. at 312.Google Scholar

235 Id. at 312–13.Google Scholar

236 Id. at 314.Google Scholar

237 See Letter of Submittal, Chief Justice Charles E. Hughes to Attorney General Homer Cummings, Dec. 20, 1937, published as a preface to the Rules of Civil Procedure for the District Courts of the United States, 308 U.S. 645, 649 (1939). Also see Hammond, supra note 386, at 182, where Robert G. Dodge, a member of the Advisory Committee, commented:. Mr. Dodge:. A few questions have been handed to me. The first is this: “Are the Equity Rules of 1912 specifically repealed in their entirety, or do fragments of the 1912 Rules remain in effect to the extent that they provide for situations not covered by the new rules or otherwise?”. It is my understanding that the Equity Rules of 1912 are gone entirely.Google Scholar

238 Hanna v. Plumer, 380 U.S. 460, 472–73 (1965).Google Scholar

239 380 U.S. 460 (1965).Google Scholar

240 304 U.S. 64 (1938).Google Scholar

241 Hanna v. Plumer, 380 U.S. 460, 465–66 (1965).Google Scholar

242 Id. at 472–74.Google Scholar

243 Id. at 472–73 (emphasis added).Google Scholar

244 See Comments by Edgar B. Tolamn in Hammond, supra note 189, at 129–30, and accompanying quotation from Chief Justice Charles Evans Hughes. Under the Conformity Act, originally enacted in 1872, subsequently recodified as former 28 U.S.C. § 724 (1928), supra note 70, the “Modes of proceeding” in federal district courts in actions at law were to “conform, as near as may be, to the … modes of proceeding” in the state courts in the place where the federal court sat. Efforts to apply and comply with this statute generated considerable confusion and discontent. See Dobie, supra note 51, at 584–88.Google Scholar

245 Hanna v. Plumer, 380 U.S. at 473–74.Google Scholar

246 Lumbermen's Mut. Casualty Co. v. Wright, 322 F.2d 759, 764–65 (5th Cir. 1963).Google Scholar

247 Hanna v. Plumer, 380 U.S. at 473.Google Scholar

248 Kaufman, supra note 10, at 462–63, 465 (at the time Kaufman articulated these views he was a United States district judge for the Southern District of New York).Google Scholar

249 253 U.S. 300 (1920).Google Scholar

250 232 F.2d 855 (8th Cir. 1956).Google Scholar

251 245 F.2d 613 (8th Cir.), cert, denied, 355 U.S. 871 (1957).Google Scholar

252 I know of two published post-1938 cases in which federal courts have relied on inherent power to refer nondiscovery tasks. In Jordan v. Wolke, 75 F.R.D. 696 (E.D. Wis. 1977), the court asked the master to conduct an investigation and then make recommendations about how to shape a temporary injunction that would expand the visitation opportunities for pretrial detainees. The court's entire discussion of its authority to order such a reference consisted of the following sentence: “This appointment is made pursuant to the court's general equity powers and not under Rule 53, Federal Rules of Civil Procedure.”Id. at 701. In Connecticut Importing Co. v. Frankfort Distilleries, 42 F. Supp. 225 (D. Conn. 1940), Judge Hincks decided to appoint a master, before trial, to prepare a report (for ultimate submission to the jury) about the extent of damages caused by alleged Sherman Act violations. The judge believed this task would require analysis of complex accounting data and thus would present “peculiar difficulty for a jury.”Id. at 226. The court ordered the master to follow the procedures Rule 53 described for gathering data, holding hearings, and preparing a report. But when Judge Hincks discussed the source of his authority to order such a reference he insisted that his power existed independent of Rule 53. Citing Ex parte Peterson and Veneri v. Draper, Judge Hincks declared (without further elaboration): “The power of the court so to proceed is beyond question. It exists independent of the rule…. Rule 53 serves but to outline the procedure to be followed when the power is exercised.”Id. at 227.Google Scholar

253 Id. at 304, 306–7.Google Scholar

254 See Dobie, supra note 53, at 623–32.Google Scholar

255 Ex porte Peterson, 253 U.S. at 304, 306–7.Google Scholar

256 Brazil, Hazard, & Rice, supra note 4, at 315–18.Google Scholar

257 Ex parte Peterson, 253 U.S. at 309, 312.Google Scholar

258 Id. at 312–13.Google Scholar

259 Id. at 314.Google Scholar

260 Id. at 312.Google Scholar

261 Id. at 306 (describing Judge Hand's justification for the appointment).Google Scholar

262 Id. at 313.Google Scholar

263 Id. at 306.Google Scholar

264 Id. at 304.Google Scholar

265 Id. at 307.Google Scholar

266 Id. at 311.Google Scholar

267 Id. at 312.Google Scholar

268 Id. at 313.Google Scholar

269 Id. at 306–7.Google Scholar

270 Id. at 307.Google Scholar

271 Other courts reportedly have endorsed a similar approach to measuring the scope of inherent power. Thus, according to commentators who have studied many pronouncements by state courts in this general subject area, the”‘inherent power of the judiciary’ is generally said to allow a constitutional court to do whatever is reasonably necessary to preserve and guarantee the efficient and orderly administration of justice.”Comment, Inherent Power and Administrative Court Reform, 58 Marq. L. Rev. 133, 136 (1975).Google Scholar

272 “See the text accompanying notes 20–81 in Brazil, supra.Google Scholar

273 The Handbook of Recommended Procedures for the Trial of Protracted Cases (Report of the Judicial Conference Study Group on Procedure in Protracted Litigation), 25 F.R.D. 351, 391 (1960) notes that it “is difficult to define with any degree of precision the exceptional circumstances under which a pre-trial master's services will be justified.” The Handbook then identifies “certain factors” that may serve “as indicia of such a case.” The factors discussed are: (1) “inordinate size and complexity” of a case, such that “it would be impossible for any judge to devote the time necessary for adequate supervision of discovery”; (2) “extensive discovery or parts of it will be conducted in places distant from the court”; (3) “the existence of undue animosity among the attorneys or parties.”Id. at 391–92. The authors of the Handbook add that “[n]ot every case calls for the full range of services” offered by a special master appointed to supervise the entire discovery process; they cited as an example of an appropriate (but more limited) reference a case where the master's sole function was to resolve disputes about assertions of privilege made with respect to a number of documents. Id. at 391.Google Scholar

274 I have suggested one possible version of such a new rule in Brazil, Hazard, & Rice, supra note 4, at 384–88.Google Scholar