(973) 403-9200
By Charles F. Vuotto, Jr.
There is a very interesting article in the June 2018 issue of the New Jersey Lawyer entitled, “The Utility of a Special Master.”[i] As correctly pointed out by the author (Harriet Derman), the applicable New Jersey Court Rules permitting the appointment of Special Masters are Rule 4:41-1 to Rule 4:41-5. Rule 4:41-1 provides as follows:
“The reference for the hearing of the matter by a judge of the Superior Court shall be made to a master only upon approval by the assignment judge, and then only when all parties consent or under extraordinary circumstances. An order of reference shall state whether the order is consensual and, if not, shall recite the extraordinary circumstances justifying the references.”[ii] (Emphasis added)
Therefore, if approved by the Assignment Judge of the county, Special Masters may be used by consent of the parties even if extraordinary circumstances do not exist. As Ms. Derman points out, the appointment of Special Masters has been approved for such matters as review and allocation of counsel fees[iii], assistance to a Court in a valuation dispute in a matrimonial matter[iv], overseeing an election dispute of absentee ballots of nursing home residents[v], and reviewing a large number of privileged documents[vi], and hearing motions to dismiss third party defendants under R.4:6-2(e)[vii]. Beyond resolution of major substantive issues, litigants very often get bogged down in discovery disputes, especially in high-asset cases. A Special Master is particularly helpful in these sorts of cases since judges very rarely have the time (considering their other docket responsibilities) to deal with complex discovery motions. This author wonders, therefore, why aren’t Discovery Masters (a form of Special Master) used more often in matrimonial matters?
During matrimonial litigation very often, there are one or two big issues in the case that create stumbling blocks to the resolution of all other issues. Usually, these issues relate to or are dependent on outstanding information. If parties are not able to resolve the major stumbling block or major point of disagreement in direct negotiations and either have tried and failed at mediation and refuse to engage an arbitrator to resolve the issue, parties often resort to motion practice. However, the courts are reluctant to engage in piecemeal litigation, and major issues may often be reserved for determination at trial. This creates a situation where the parties have no other alternative but to continue to litigate and attempt to prevail on the major sticking point at the time of trial. Very often, the court does not have the resources to expend as needed to evaluate a major issue in the case by way of motion practice on a pendente lite basis, which usually would require a plenary hearing. Often these issues are pushed off until the final hearing or trial. However, if there was a mechanism in place to allow these isolated stumbling blocks in terms of discovery to be resolved, the author believes that many more cases would settle long before the trial date.
In fact, a Special Master employed to resolve a sticking point between the parties may also make effort to assist the parties in resolving those issues in a consensual fashion. (Although this author would caution that the same concepts as discussed in Minkowitz v. Israel[viii] would have to be addressed if the Special Master took on a facilitative role.)
How is this different than arbitration? Utilization of a Special Master arises pursuant to R.4:41-1. The Court has discretion to appoint a Special Master under that Rule whereas the Court cannot compel parties to engage in arbitration.
Clearly, the standard to be met in order to obtain the appointment of a Special Master (without consent) is high. The Court requires (unless the parties agree otherwise) a showing of “extraordinary circumstances” justifying the appointment.
The cost of a Special Master must be considered. As correctly stated by the Court in Zehl v. City of Elizabeth Board of Education[ix], “the interest in alleviating administrative burdens harmonizes with litigants’ interest in swift and economical resolution of their disputes.”[x] The Appellate Court was warned that the appointment of Special Masters should be “judicious and limited.”[xi] As stated by Ms. Derman in the aforementioned New Jersey Lawyer article, “the implementing order should provide for the scope of the Master’s authority, specifying or limiting the Master’s power and may direct the Master only to report on particular issues or to do particular acts or to receive and report evidence only.”[xii]
It is true that a reference to a Discovery Master may not exceed the scope of the parties’ consent and may not be used as a device to limit a party’s right to complete discovery and to present witness at trial.[xiii] With that acknowledged, however, utilizing a Special Master in the form of a Discovery Master who is paid to spend the time dealing with the minutia of discovery disputes would seem to be something parties should readily agree to when such disputes place a road block in the way of a resolution on the merits.
[i] 312 New Jersey Lawyer, 52 (Harriet Derman, June 2018)
[ii] R.4:41-1
[iii] Stanley & Fischer, P.C., v Sisselman, 215 N.J. Super. 200 (App. Div. 1987); In re: Unanue, 311 N.J. Super. 589 (App Div.) certif. denied, 157 N.J. 541 (1998), cert. denied, 526 U.S. 1051 (1999).
[iv] Levine v. Wiss & Co., 97 N.J. 242, 250 (1981)
[v] Petition of Battle, 96 N.J. 63 (1984)
[vi] Rivard v. Am. Home Products, Inc., 391 N.J. Super. 129, 153 (App. Div. 2007)
[vii] New Jersey Dep’t of Envir. Prot. v. Occidental Chem. Corp., 212 W.L. 1392597
[viii] Minkowitz v. Israel, 433 N.J. Super. 111 (App. Div. 2013)
[ix] 426 N.J. Super. 129 (App. Div. 2012)
[x] Id. at 137.
[xi] Id. at 142.
[xii] R.4:41-3.
[xiii] See Cardell, Inc. v. Piscatelli, 277 N.J. Super. 149 (App. Div. 1999)