Discovery Masters

Zehl v. Elizabeth Bd. of Educ., 426 N.J. Super. 129 (App. Div. 2012).  Rule 4:41 allows a court to appoint a discovery master to deal with discovery issues “only upon approval by the Assignment Judge, and then only when all parties consent or under extraordinary circumstances.”  The discovery master’s “compensation shall be fixed by the court and charged upon such of the parties or paid out of any fund or property as the court directs.”

In this wrongful discharge and employment discrimination case, in which a cook-manager sued a school district, the Law Division appointed a discovery master.  The discovery master’s compensation was to be $450 per hour, and the parties were to split that cost evenly.

As the basis for the appointment, the judge cited the intensely contentious nature of the case, the number of motions filed, and the frequent calls to the court from depositions where disputes arose.  The judge also noted how many motions he had on any given motion day, and observed that his county was short several judges.  All of this meant that, to the Law Division judge, this case was very burdensome.

Plaintiff sought leave to appeal the appointment of the discovery master.  In an opinion by Judge Carchman, the Appellate Division reversed the appointment.

Though plaintiff had challenged whether there were “extraordinary circumstances” here, “distilled to its essence, plaintiff’s argument focuses on the cost of a discovery master and the impact of such cost on plaintiff’s ability to maintain this litigation.”  Judge Carchman found that the cost issue had merit.

Statutes such as the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, and the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, under which plaintiff had sued, are remedial and are designed to encourage the vindication of important rights of employees.  The Court Rules, including Rule 4:41, seek to manage litigation efficiently and to achieve justice for all parties.  Though those two policies often dovetail, they collided here.

Judge Carchman concluded that “in actions brought pursuant to the LAD and CEPA, in finding extraordinary circumstances as grounds for appointing a discovery master, the trial judge must consider the remedial nature of the LAD and CEPA litigation as well as the ability of litigants to absorb the costs of such relief.  The judge must consider that the appointment of a discovery master in fee-shifting remedial cases, which by their very nature oftentimes involve litigants with limited resources, may impose a cost burden on litigants that creates a de facto bar to their access to the justice system.”  Because the Law Division had not considered those factors, reversal and remand was required.  Though “[t]he motions were numerous to the point of excessive, … such conduct cannot be countered by delegating motions to discovery masters without regard for the consequent financial burden to litigants, whose interests are protected by the LAD and CEPA.”

Judge Carchman laid out some techniques that could make the litigation and motion practice more manageable even without a discovery master, such as case management conferences, motion screening procedures, limitations on oral argument, and requiring parties to try to narrow differences before filing motions.  But if a discovery master were found to be necessary on remand, the cost considerations (to both sides– plaintiff, a cook , with very limited financial resources, and defendant, a public entity, whose taxpayers would bear the burden of defendant’s share of the costs of the discovery master) must be taken into account.

This is a very sensible and realistic opinion by a judge whose General Equity background undoubtedly informed his reasoning.  Access to courts, a key consideration in this opinion, cannot be frustrated by imposing insuperable financial demands, as the panel rightly noted.  Moreover, as Judge Carchman stated, it is no answer to say that plaintiff may be reimbursed for the costs of the discovery master under the fee-shifting provisions of the LAD and/or CEPA if she is successful.  Even with such “belated adjustments, litigants in LAD and CEPA cases would be wary about pursuing their claims if they were exposed to the potential of significant costs incurred in the litigation.”

For the future, Judge Carchman cautioned that discovery masters are “the exception rather than the rule.”  “Systemic” considerations such as increased burdens on judges, reduced numbers of judges in county courthouses, and the like are not to be the basis for appointing a discovery master.  Rather, “case-centric” considerations must call for that, and even then discovery master appointments are to be “judicious and limited.”


Judge Carchman observed that, in most cases, the interests of