In Zehl v. City of Elizabeth Bd. Of Educ., No. A-1296-11T3 (N.J. Super. Ct. App. Div. May 31, 2012), the Appellate Division of the Superior Court of New Jersey was presented with the following question: should the court take into account the ability of someone to pay the fees of a discovery master when determining whether a discovery master should be appointed?

In that case, a cafeteria worker sued her employer for violations of the New Jersey law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et. seq., and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et. seq.  The underlying discovery in the case (exchange of information by way of testimony, documents and answers to written questions) was complex and voluminous. The Court decided to appoint an impartial discovery master to manage the discovery process. The Plaintiff and Defendants were required to split the fee for the discovery master.

The Appellate Division held that when the court below appointed a discovery master, it erred because it did not 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.” Id. at 1. On that basis, the Appellate Division reversed and remanded the case.

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