In E.I. Dupont de Nemours & Co. v. Waters , 298 Ga. App. 843, 844 681 SE2d 651 2009, the Court of Appeals determined that, because the complaint filed in this products liability class action prays for equitable relief, the trial court had the authority to appoint a special master to rule on issues of fact and law in pretrial discovery under OCGA § 9-7-1 et seq.1 The Court of Appeals further found, however, that the order appointing the special master contained provisions which were inconsistent with the statutory scheme, and it remanded the case to the trial court for this reason. We granted certiorari to examine the propriety of the Court of Appeals’ ruling. As set forth in the opinion below, the relevant facts of this case are as follows: Plaintiff Dennis A. Waters, Jr., on behalf of himself and others similarly situated, brought this class action lawsuit against DuPont and Liberty Mobile Home Supply, Inc. Waters claimed that DuPont and Liberty had fraudulently marketed Delrin, an acetyl resin, by misrepresenting its suitability to connect lengths of polybutylene pipes. In response to Waters’s request for production, DuPont provided Waters with CD-ROMs containing approximately 2.2 million pages of documents. DuPont also provided Waters with two privilege logs, the first containing 2,837 entries and the second containing fifty-eight entries. Waters moved the superior court to order an in camera review of the documents contained in DuPont’s privilege log under whatever terms and conditions the court deemed appropriate. The superior court held a hearing on the pending discovery issues. Following the hearing, Waters asked the superior court to appoint a special master to review the privilege logs and underlying documents. DuPont opposed these motions. The superior court subsequently issued an order appointing a special master. The order, which did not purport to be pursuant to any specific statutory authority, defined the special master’s duties and compensation, the conduct of the parties in relation to the special master, and an appeals process. More specifically, the order authorized the special master to “establish case management orders and discovery schedules, and otherwise perform such acts necessary to expeditiously and efficiently move the case through the discovery process.” The order also provided that the special master could entertain pending and future discovery motions, issue rulings on the motions, and impose sanctions on any party for failure to comply with discovery requirements. The order further authorized the special master to charge $300 an hour for his services, allocated among the parties as the special master deemed appropriate. Finally, the order allowed the parties to make de novo appeals to the superior court from rulings of the special master. During the pendency of such appeals, absent the express order of the special master, the parties were required to comply with the special master’s rulings. Id. at 844. Dupont appealed this ruling to the Court of Appeals, arguing that: 1 this matter is a non-equity case and 2 special masters may be appointed only in non-equity cases concerning condemnation OCGA § 22-2-100 et seq., quiet title actions OCGA § 23-3-63, and lawyer disciplinary proceedings Ga. Bar. R. 4-106. The Court of Appeals disagreed, holding:
Under OCGA § 9-7-2, the superior court is authorized to appoint an auditor in cases where the plaintiff invokes the court’s equitable powers by praying for an injunction or other form of equitable relief. Once appointed under OCGA § 9-7-2, an auditor has the power to hear motions, pass on questions of law and fact, and compel the production of documents. See OCGA § 9-7-6. Whether an auditor shall be appointed is, as a general rule, in the discretion of the court; and unless there has been an abuse of such discretion, the appointment by the court of an auditor will not be disturbed. Applying these principles, we conclude that the superior court did not err by appointing an auditor, termed a special master, under the circumstances of this case. Waters’s complaint prayed for equitable relief, including the imposition of injunctions and a constructive trust. The superior court, therefore, was entitled to invoke its powers to appoint an auditor under OCGA § 9-7-2. Citations, punctuation, and footnote omitted. Id. at 845-846 1.
