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
