*1 This Cause comes before the Court concerning the appointment of a special master pursuant to Federal Rule of Civil Procedure 53. [ECF No. 545]. The Court has considered the parties’ submission of a list of possible candidates for special master, the parties’ proposed orders, and the affidavit of attorney John Barkett, and held a hearing on June 19, 2014 regarding this matter. [ECF Nos. 546; 547; 551; 552; 553; 554]. For the reasons stated in the Court's June 14, 2014 Order and at the June 19, 2014 hearing, it is ORDERED as follows:

I. BACKGROUND

On February 28, 2014, the Court entered a Forensic Analysis Order [ECF No. 341] concerning a forensic analysis of Plaintiff Procaps, S.A.’s (“Procaps”) electronically stored information (“ESI”). The Court has updated that order and the Second Amended Forensic Analysis Order [ECF No. 493] is the current version. Setec Investigations (“Setec”) and H5, Inc. (“H5”) are the entities engaged for the project. Setec has been conducting the actual forensic analysis and H5 is to provide the hosting. Both Setec and H5 are considered neutral third parties. Despite several hearings designed to facilitate the forensic analysis, including hearings in which Setec's representatives participated, numerous disputes have arisen between the parties. Many of the disputes turn on specialized technical ESI issues and have required, and will require, the expenditure of significant time by the Court and its staff to address the ESI issues.

After being afforded notice and an opportunity to be heard, the parties consented to the appointment of a special master to address the ESI issues. [ECF No. 551, pp. 5-10]. They have also agreed to the appointment of John Barkett as the special master. [ECF No. 546].

II. THE APPOINTMENT

1. After giving the parties notice and an opportunity to be heard (including the opportunity to recommend candidates) and upon consideration of the affidavit filed pursuant to paragraph 2, the Court appoints John Barkett, pursuant to Rule 53, as a neutral special master in this action for the purpose of resolving the matters referred to him in connection with the Second Amended Forensic Analysis Order [ECF No. 493] as described below.

2. Pursuant to Rule 53(a)(2) and (b)(3), Mr. Barkett[1] filed an affidavit disclosing whether there are any grounds for disqualification under 28 U.S.C. § 455. [ECF No. 552]. No grounds for disqualification were disclosed and, as such, the Special Master's appointment shall be effective upon the date of this Order.

III. THE SPECIAL MASTER'S AUTHORITY

*2 3. The Special Master is authorized to manage and resolve all disputes concerning the Second Amended Forensic Analysis Order [ECF No. 493], including but not limited to, resolving disputes concerning (a) the search term refinement procedure [Id. at pp. 7-8, ¶ 10];[2] (b) the procedure for reviewing, producing, withholding, and redacting Procaps’ documents (including all disputes arising from or relating to the Privilege Log and Personal Information Log, except as set forth in Paragraph 15) [Id. at pp. 8-10, ¶¶ 11-13]; (c) the production of Procaps’ documents [Id. at p. 10, ¶ 13]; (d) any technical matters concerning the Forensic Analysis; (e) any other matters the Court may refer to the Special Master after giving the parties notice and an opportunity to be heard; (f) any other matters that the parties may jointly agree to present to the Special Master for his consideration; and (g) if a motion for a forensic analysis of Patheon's ESI were to be filed, a recommendation on whether the motion should be granted.

4. The Special Master may issue such orders or direct the parties and/or Setec or H5 to take any action necessary to ensure proper completion of the forensic analysis. In carrying out his duties, the Special Master shall interpret and apply the plain language of the Court's Second Amended Forensic Analysis Order. The Special Master shall determine for himself the logistics of his activities (e.g., methods of communication, whether to require in-person meetings, etc.) and is authorized to conduct hearings, meetings, and telephone conferences with the parties, take all appropriate measures to perform the assigned duties fairly and efficiently, and adopt such procedures as are not inconsistent with Rule 53 or with this or other Orders of the Court. The parties shall provide the Special Master with access to any documents and personnel (including technical staff and vendors) necessary to perform his duties as outlined in this Order. The Special Master “may by order impose on a party any noncontempt sanction provided by Rules 37 or 45, and may recommend any contempt sanction against a party and sanctions against a nonparty.” Fed. R. Civ. P. 53(c)(2).

5. The Special Master may, after consulting with the Parties, recommend to the Court that his duties be expanded to cover issues related to the forensic analysis which are not specifically listed here or in the Second Amended Forensic Analysis Order.

IV. LIMITS ON THE SPECIAL MASTER'S AUTHORITY

6. The Special Master only has the authority that the Court has provided him in this Order, and does not have any other authority. The Court will not permit the parties to re-litigate the provisions of the Second Amended Forensic Analysis Order before the Special Master. The Court already decided these issues.

7. Accordingly, the Special Master shall not modify or nullify in any manner any provision of the Second Amended Forensic Analysis Order, except that the Special Master may modify the deadlines set forth in numbered Paragraphs 11 and 13 of the Second Amended Forensic Analysis Order, as these deadlines already have passed or will soon pass. [ECF No. 493, pp. 8, 10, ¶¶ 11, 13].

8. Procaps has told the Court it intends to file a motion for forensic analysis of defendant Patheon, Inc.’s (“Pahteon”) ESI, and asks the Court to order the Special Master to oversee the implementation and enforcement of the Court's order granting that motion. But no such motion has been filed yet, so that issue is not ripe or before the Court. However, if Procaps were to file such a motion, then the Special Master will entertain argument on it and issue a recommendation about whether the Court should grant such a motion, and, if so, the parameters of the forensic analysis. By adding this potential issue to the Special Master's duties, the Court is not stating or implying one way or the other whether such a motion would be justified or whether it would be deemed a defensive or purely retaliatory tactic.

*3 9. Any disputes concerning whether a document listed on any privilege log is subject to the attorney-client privilege, the work product doctrine, or any other applicable privilege shall be decided by the Court, and the Special Master does not have the authority to resolve any such disputes.

10. The Special Master may seek from the Court clarification of this Order, his duties, or any additional specific authority he deems necessary.

V. THE SPECIAL MASTER'S ORDERS, REPORTS, AND RECOMMENDATIONS

11. Unless otherwise instructed by the Special Master, the parties shall present disputes to the Special Master in writing. The Special Master may direct the parties to present the disputes formally, by motion, or informally, such as through a request for action in a letter, memo, or email. All requests for relief submitted to the Special Master shall be governed by the pre-filing conferral requirement of Local Rule 7.1. The Special Master has authority to impose additional procedures concerning the length, format, timing, service method (e.g., mail, telefax, email) and content of motions and other requests for relief or action. All motions, letters and other requests for relief must be served on opposing counsel before or at the time they are sent to the Special Master. The Special Master shall file all orders, reports, or recommendations and promptly serve a copy on each party. The Clerk of the Court must enter the order, report, or recommendation on the docket. See Fed. R. Civ. P. 53(d)-(e).

12. The Special Master shall preserve, as a record of his activities, all written submissions received from and sent to the parties, and any transcripts of hearings before him. All hearings, including telephone hearings, before the Special Master shall be transcribed, and the parties shall timely provide a copy of each transcript to the Special Master. Unless otherwise directed by the Special Master, the parties shall coordinate the arrangements for procuring a court reporter for the hearings. The Special Master shall file with the Clerk of the Court such records upon request of the Court.

13. A party may file objections to, or a motion to adopt or modify, the Special Master's order, report, or recommendation no later than seven (7) days from the time that order, report, or recommendation is served. See Fed. R. Civ. P. 53(f)(2). The party filing such objection or motion shall file with the Court only the relevant portions of the record. Any opposition to the objection must be filed no later than (7) days from the date of the objection.

14. The Court will decide de novo all objections to conclusions of law made or recommended by the Special Master. Fed. R. Civ. P. 53(f)(4). The Court will review de novo findings of fact made or recommended by the Special Master. Fed. R. Civ. P. 53(f)(3). Any report, order, or recommendation of the Special Master, unless it involves a finding of fact or conclusion of law, will be deemed a ruling on a procedural matter. The Court will set aside a ruling on a procedural matter only where it is an abuse of discretion. Fed. R. Civ. P. 53(f)(5).

15. In addition to filing orders and recommendations, the Special Master shall periodically file succinct informal written status reports after his appointment becomes effective, in such format he deems most helpful, identifying his activities and the status of matters within his purview. These informal status reports should summarize any outstanding issues and identify any particular matters requiring Court action. The first succinct status report shall be filed within twenty (20) days after the effective date of the Special Master's appointment and each subsequent status report shall be filed every two (2) weeks thereafter until all matters referred to the Special Master have been concluded and the Special Master so advises the Court in a final status report. If no significant developments have occurred since the last status report, then the Special Master need not file a report. In the event of a “no-signifcant-activity” scenario, the Special Master shall merely file a simple, succinct notice advising the Court that no report is being filed. A one-sentence notice will be sufficient. These informal status reports are not intended to include the actual reports, rulings, and recommendations made by the Special Master.

*4 16. Once the appointment becomes effective, the Special Master is directed to proceed with reasonable diligence to perform the duties and responsibilities set forth herein in an efficient and cost-effective manner. The Special Master shall take reasonable steps to avoid generating undue and unreasonable expense and/or delay.

17. The Special Master agrees to be bound by the terms of the Stipulated Order for the Protection of Confidential and Highly Confidential Information. [ECF. No. 86].

VI. COMMUNICATIONS WITH THE SPECIAL MASTER

18. The Special Master may communicate with the Court ex parte on all matters as to which the Special Master has been empowered to act. He may also communicate ex parte with Setec and H5. He may communicate ex parte with counsel for Procaps and Patheon on non-substantive matters, such as scheduling, briefing schedules, court reporter arrangements, etc. From the date of this Order, the Special Master may not communicate ex parte with the parties or their counsel on substantive matters without the consent of all parties. To the extent the parties have disputes as to the means and methods for efficiently obtaining discoverable ESI, the Special Master may, with the consent of both parties, participate in the parties’ “meet and confer” sessions.

19. The Parties shall designate a primary contact for the Special Master and shall provide all contact information, including name, address, direct office telephone number, cellular telephone number, and email address.

VII. COMPENSATION OF THE SPECIAL MASTER

20. The Special Master has graciously agreed to discount his standard hourly rate from $730 to $650. In the absence of other circumstances, the party responsible for causing the circumstances creating the need for a special master to evaluate ESI issues would be financially responsible for the master's fees. PIC Grp., Inc. v. LandCoast Insulation, Inc., No. 1:09-cv-662, 2011 WL 1342951, at *1-2 (S.D. Miss. Mar. 4, 2011) (ordering defendant to pay all of special master's fees, where special master was to investigate the “sufficiency of the identification, preservation, collection, search, processing and production” of ESI by defendant).

In the instant case, however, there are some other circumstances. To be sure, it was Procaps’ failure to timely implement a litigation hold and to adequately search for ESI that generated the need for the forensic analysis, and that is why it is Procaps which is paying (at least preliminarily) the fees and costs for the analysis. However, it is both parties’ inability to agree on even the most basic points which is partially responsible for the ongoing disputes concerning the forensic analysis. As the Court has noted previously, counsel for both parties appear to genuinely dislike each other, but, regardless of their personal feelings toward each other, they have demonstrated a chronic inability to adequately resolve disputes on their own. Each side accuses the other of being unreasonable, and, without getting into a point-by-point assessment, the Court notes that Patheon's position that the search term refinement procedure should conceivably lead to more hits is inconsistent with the underlying purpose of a procedure designed to narrow the search results. Unless otherwise modified by Court order, Procaps shall pay 75% of the Special Master's fees and costs; Patheon will pay 25%. The parties[3] must make payment within 15 days of receiving the Special Master's invoices.

*5 21. The Special Master's compensation will include time he spent reviewing portions of the file in order to familiarize himself with the background, as well as time reviewing materials submitted to him by the Parties and time he incurs in reviewing the docket to keep up with developments in the case as they relate to his duties.

22. To the extent that the Special Master believes it is helpful to use other attorneys or paralegals or other employees of his law firm to conduct legal research on ESI issues or otherwise assist him in fulfilling his duties, he will be entitled to charge fees for their time, as well.

23. The Court reserves its authority to shift any or all of these fees and costs at any time before the conclusion of this lawsuit.

24. The Special Master may recommend that responsibility for the fees and or costs should be modified and shall include his reasons for the suggested modification in the recommendation.

25. The Special Master shall submit to both parties and the Court his invoices for costs and services performed according to his normal billing cycle. If any party objects to the fees and costs, then it may file an objection within seven (7) days after receiving the invoice (but only after first attempting to resolve the dispute with the Special Master in a hearing or telephone conference in which all parties have been invited to attend).

DONE AND ORDERED, in Chambers, in Miami, Florida, July 14, 2014.