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52 NEW JERSEY LAWYER | JUNE 2018 NJSBA.COM
Employment of a special master in litigation can
be very useful to both court and counsel alike.
Special discovery masters, who manage and
supervise discovery, are not unusual, but special
masters can assume other helpful roles to the
bench and bar alike, and have done so histori-
cally in state and federal courts.
THE UTILITY OF ASPECIAL MASTERby Harriet Derman
June 2018.qxp_June 2018_NJL 5/21/18 11:35 AM Page 52
In both venues, special masters are
employed on the court’s own initiative,
by motion of one party, or by the con-
sent of the parties.
In New Jersey State CourtsIn New Jersey, the appointing rule is
Rule 4:41-1, which provides as follows:
the reference for the hearing of a 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 extraor-
dinary circumstances. the order of refer-
ence shall state whether the reference is
consensual and, if not, shall recite the
extraordinary circumstances justifying the
reference. (emphasis added).
The appointment of discovery mas-
ters has been approved for such matters
as review and allocation of counsel fees,1
assistance to a court in a valuation dis-
pute in a matrimonial matter,2 oversee-
ing an election dispute with respect to
absentee ballots of nursing home resi-
dents,3 and reviewing large numbers of
privileged documents.4 In N.J. Dep’t. of
Envtl. Prot. v. Occidental Chem. Corp., the
special master was even authorized to
hear motions to dismiss filed by third-
party defendants under Rule 4:6–2(e).5
In New Jersey, special masters have a
long and respected history of dealing
with controversial constitutional issues,
such as assisting “municipal officials in
developing constitutional zoning and
land use regulations”6 in Mt. Laurel mat-
ters and the development of an eviden-
tial record in the school funding contro-
versy.7 In criminal matters, masters
determined the basic scientific reliabili-
ty of breath tests for determining offens-
es under drunk driving statutes8 and
have been helpful to the Supreme Court
in determining whether there is evi-
dence of race of victim or race of defen-
dant discrimination in New Jersey’s cap-
ital sentencing scheme.9
The Supreme Court has acknowl-
edged the importance of special masters
in Mt. Laurel matters where they are
required to assist municipal officials in
developing constitutional zoning and
land use regulations, calling them
“hybrid masters.”10 The Court noted
that these impartial experts use their
skills to help the parties formulate a
remedy that will comply with the trial
court’s order and supply information
that the parties may not have available
to them.11 While traditional masters usu-
ally serve as fact-finders and supervise
procedural tasks, hybrid special masters
work with the parties to devise a remedy
that will meet with the court’s
approval.12
The Mt. Laurel Court praised the use
of such a master:
in our view the master is of potential help
to all concerned: to the municipality, to the
plaintiffs, to the court and counsel. he or
she is an expert, a negotiator, a mediator,
and a catalyst—a person who will help the
municipality select from the innumerable
combinations of actions that could satisfy
the constitutional obligation, the one that
gives appropriate weight to the many con-
flicting interests involved, the one that sat-
isfies not only the constitution but, to
some extent, the parties as well.13
On the other hand, a case where dis-
covery has run “out of control” or where
the matter is legally complex should not
invite, without extraordinary circum-
stances, the appointment of a special
master. In the context of remedial
actions brought pursuant to the Law
Against Discrimination (LAD)14 and the
New Jersey Conscientious Employee
Protection Act (CEPA),15 the Appellate
Division, in Zehl v. City of Elizabeth Board
of Education,16 emphasized the “high
threshold of extraordinary circum-
stances’” and pointed to the require-
ment of the “imprimatur of the assign-
ment judge.”17 The court reversed the
appointment of a special discovery mas-
ter by a trial judge, who had noted the
over-litigation by counsel, but not the
rights of the LAD or CEPA plaintiff that
were being vindicated.
Although the utilization of special
masters can be utilitarian in “protracted
cases involving voluminous documents
and complex legal issues and in com-
plex litigation involving scores of depo-
sitions, interrogatories and other discov-
ery techniques,”18 for cases involving
remedial legislation with fee shifting,
the threshold is not met simply because
a matter is aggressively litigated.
The court noted the enormous pres-
sure on the trial judge in the matter, but
refused to consider that the burden con-
stituted extraordinary circumstances. The
appellate court required a “case-centric,”
rather than systemic analysis, especially
for a case involving parties of unequal
means19 where payment of the special
master’s fees could be burdensome.
The appointment of a master is appro-
priate where “the interest in alleviating
administrative burdens harmonizes with
litigants’ interest in swift and economical
resolution of their disputes.”20 Despite
noting that “courts may have limited
time and resources to engage in the req-
uisite review and analysis without the
assistance of masters,”21 appointments of
special masters should nevertheless be
“judicious and limited.”22
In every case, the implementing
order should provide for the scope of
the master’s authority, specifying or lim-
iting the master’s power and “may direct
the master to report only upon particu-
lar issues or to do particular acts or to
receive and report evidence only.”23 The
master has the authority to “do all acts
necessary or proper for the efficient per-
formance of the duties directed by the
order,”24 and the master has the author-
ity to call witnesses and hear their testi-
mony under oath.25
If a meeting or hearing is required,
Rule 4:41-4 provides the protocol.
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Thereafter, if required by the order of
appointment, the master shall prepare a
report “upon the matters submitted
including any findings of fact and con-
clusions of law.”26 The master shall file
the report with the court within 10
days.27 In non-jury actions, “the court
shall accept the master’s findings of fact
unless contrary to the weight of the evi-
dence.”28 In the interim 10 days, any
party may serve written objections and
the court “may adopt the report, modify
or reject it in whole or in part, receive
further evidence, or recommit it with
instructions.”29 In jury trials, the mas-
ter’s findings are admissible as evidence
and may be read to the jury, “subject to
the ruling of the court upon objections
to the report or the evidence.”30
Whatever the delegation of authority,
“[a] court may not abdicate its ‘supervi-
sory duty over a master.”31 The same
standard applicable to trial judges (i.e.,
deference to findings supported by cred-
ible evidence in the record) is applicable
to the findings and conclusions of spe-
cial masters before an appellate court.32
Masters are subject to the same strict
conflict of interest rules of the Judiciary
even if their role is only advisory.33
In Federal CourtIn federal court, the appointing rule
under Fed. R. Civ. P. 53 is as follows:
a. appointment.
1. Scope. Unless a statute provides other-
wise, a court may appoint a master only
to:
(a) perform duties consented to by the
parties;
(b) hold trial proceedings and make or
recommend findings of fact on issues
to be decided without a jury if
appointment is warranted by:
(i) some exceptional condition; or
(ii) the need to perform an accounting
or resolve a difficult computation
of damages; or
(c) address pretrial and post trial matters
that cannot be effectively and timely
addressed by an available district judge
or magistrate judge of the district.
Federal special masters, in addition to
undertaking similar responsibilities as in
state court, have been particularly help-
ful in complex and multi-district litiga-
tion in federal courts.34 The federal
courts have used masters in more spe-
cialized roles as auditors,35 determining
amounts to be paid to claimants,36 class
action masters,37 technology masters,38
coordinating masters,39 monitors of
prison conditions,40 union membership
practices,41 and settlement masters.42
Disqualification of a special master is
tested by the rule requiring disqualifica-
tion for a judge under 28 U.S.C. § 455.
The order of appointment is issued only
after the master files an affidavit disclos-
ing whether there is any ground for dis-
qualification under the statute.43 The
rule specifically directs the appointing
judge to consider the “fairness of impos-
ing the likely expenses on the parties
and must protect against unreasonable
expense or delay.”44 Masters may impose
non-contempt sanctions and recom-
mend contempt sanctions against a
party and sanctions against a nonparty.45
Litigants have 21 days to object.46
Procedural matters are set aside only
if there is an abuse of discretion.47 The
court must decide de novo all objections
to findings of fact made or recommend-
ed by the master unless the parties have
agreed to a clear error standard or unless
the appointment of the master had been
consented to by the parties or the mat-
ters involve pretrial and post-trial mat-
ters that “cannot be effectively and
timely addressed by an available district
judge or magistrate judge.”48 With
respect to objections to conclusions of
law, the court must decide these deter-
minations made by the master de novo.49
Under the federal rules, a court of
appeals may also appoint a special mas-
ter “to hold hearings, if necessary, and
to recommend factual findings and dis-
position in matters ancillary to proceed-
ings in the court.”50
CompensationCompensation of the special master
is generally an hourly rate as set forth in
the appointing order or by reference
made to the special master’s regular
billing rate. The order sets forth the allo-
cation of payment (i.e., 50 percent by
plaintiffs and 50 percent by defendants).
It may also be paid out of a fund as the
court directs.51 The order may also
authorize the special master to modify
the allocation if one party’s conduct
causes the involvement of the special
master. The federal rules specifically
require the court to allocate the pay-
ment after considering the “nature and
amount of the controversy, the parties’
means, and the extent to which any
party is more responsible than other
parties for the reference to a master.”52
Where constitutional issues are not
implicated, courts clearly have to consid-
er the cost to the litigants in appointing
special masters,53 but in matters where
the parties have the resources and espe-
cially where they consent, the special
master can provide prompt access, deci-
sions, and results. Motions can be
promptly decided with special attention,
in camera reviews can be facilitated
whether they are of medical records or
tax returns, and refusal to answer ques-
tions at depositions can be addressed
with the assistance of an available special
master who can make immediate rulings,
whether in attendance or by telephone,
while the court is not interrupted.
The order may provide for additional
financial details, such as how frequently
the special master should bill and
whether the special master is authorized
to utilize legal associates or to hire
experts.
ConclusionBoth under the state and federal
54 NEW JERSEY LAWYER | JUNE 2018 NJSBA.COM
June 2018.qxp_June 2018_NJL 5/21/18 11:35 AM Page 54
rules, special masters can assist the court
in fact finding and supervising discov-
ery in cases involving substantial judi-
cial intervention and time. The use of a
special master represents an efficient
and effective technique for moving mat-
ters in litigation. A special master can
also assist the courts in fashioning,
implementing, and supervising reme-
dies. The special master provides an
effective and efficient methodology for
moving cases as long as the parties con-
sent or the Rules of Court for appoint-
ment are satisfied. �
Harriet Derman is a retired chancery
and probate judge and formerly presiding
judge of the Civil Division of Vicinage XIII,
now providing mediation and arbitration
services as chair of the alternative dispute
resolution group at DiFrancesco Bateman,
P.C. in Warren. She has frequently served as
a special master in state and federal courts.
Endnotes1. Stanley & Fisher, 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).
2. Levine v. Wiss & Co., 97 N.J. 242, 250
(1981).
3. Petition of Battle, 96 N.J. 63 (1984).
4. Rivard v. Am. Home Products, Inc.,
391 N.J. Super. 129, 153 (App. Div.
2007).
5. New Jersey Dep’t of Envir. Prot. v. Occi-
dental Chem. Corp., 2012 WL
1392597,
at *2 (App. Div., April 24, 2012).
6. S. Burlington Cty. N.A.A.C.P. v. Mount
Laurel Twp., 92 N.J. 158, 281–82
(1983).
7. Abbott ex rel. Abbott v. Burke, 206 N.J.
332 (2011).
8. State v. Chun, 194 N.J. 54, 92 (2008).
9. In Re Proportionality Review Project
II, 165 N.J. 206, 226 (2000).
10. S. Burlington Cty. N.A.A.C.P. v. Mount
Laurel Twp., supra, 92 N.J. at 281.
11. Id., citing 78 Colum. L. Rev. at 794.
12. Id., citing 78 Colum. L. Rev. at 805
and 84 Yale L.J. at 1344.
13. Id. at 283.
14. N.J.S.A. 10:5-1 to -42.
15. N.J.S.A. 34:19-1 to -8.
16. Zehl v. City of Elizabeth Board of Edu-
cation, 426 N.J. Super. 129 (App. Div.
2012).
17. Id. at 142.
18. Id.
19. Id.
20. Id. at 137.
21. Id. at 142.
22. Id.
23. Rule 4:41-3.
24. Id.
25. Id.
26. Rule 4:41-5(a).
27. Id.
28. Rule 4:41-5(b).
29. Id.
30. Rule 4:41-5(c).
31. Rivard, supra, 391 N.J. Super. at 153,
citing St. Joseph’s v. Muifield Constr.
Co., 362 N.J. Super. 540 (App. Div.
2003).
32. Abbott ex rel. Abbott v. Burke, 199 N.J.
140, 146, n.2 (2009).
33. Deland v. Twp. of Berkeley Heights,
361 N.J. Super. 1, 12 (App. Div.), cer-
tif. den., 178 N.J. 32 (2003).
34. In re: Diet Drugs (Phentermine, Fenflu-
ramne, Dexfenfluramine) Products
Liab. Litig., 1999 WL 782560 at *2
(E.D. Pa. Sept. 27, 1999).
35. Arthur Murray, Inc. v. Oliver, 364 F.2d
28 (8th Cir. 1966).
36. United States v. Mastellone, 2011 WL
4031199 (S.D.N.Y. Sept. 12, 2011).
37. Sullivan v. DB Invs., Inc., 667 F.3d
273 (3d Cir. 2011).
38. Cobell v. Norton, 184 F. Supp. 2d 1
(D.C. Ct. 2002).
39. In re United States, 1998 WL968487
(Fed. Cir., Dec. 23, 1998).
40. Brown v. Plara, 563 U.S. 493 (2011).
41. Local 28 of Sheet Metal Workers’ Int’l.
Ass’n. v. EEOC, 478 U.S. 421 (1986).
42. In re Austrian & Germ. Bank Holocaust
Litig., 317 F.3d 91 (2d Cir. 2003).
43. Fed. R. Civ. P. 53(b)(3).
44. Fed. R. Civ. P. 53(a) (3).
45. Fed. R. Civ. P. 53 (c) (2).
46. Fed. R. Civ. P. 53(f)(2).
47. Fed. R. Civ. P. 53(f)(5).
48. Fed. R. Civ. P. 53 (f)(3)(A) and (B).
49. Fed. R. Civ. P. 53(f) 4.
50. Fed. R. App. P. 48 (a).
51. Rule 4:41-2 and Fed. R. Civ. P. 53(g).
52. Fed. R. Civ. P. 53(g)(3).
53. Zehl, supra, 426 N.J. Super. at 140.
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