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Wednesday, June 27, 2012

CATHERINE ZEHL VS. CITY OF ELIZABETH BOARD OF EDUCATION, ET AL. A-1296-11T3


CATHERINE ZEHL VS. CITY OF ELIZABETH BOARD OF EDUCATION, ET AL.
 A-1296-11T3

This interlocutory appeal, where we review the propriety of the appointment of a discovery master based on extraordinary circumstances under Rule 4:41-1, requires us to reconcile and harmonize two significant policies:  1) the continuing need for and use of available tools and procedures to ensure that litigation is conducted in an orderly and efficient manner to achieve a just result; and 2) the recognition and safeguarding of unfettered judicial access for litigants prosecuting remedial actions brought pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.  

   While these two policies generally partner well, where the posture of the litigation warrants the use of a discovery master, these policies may conflict.  We conclude 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.  The trial judge failed to consider these factors here.  We reverse and remand. 05-31-12