Commercial Division Appoints Special Discovery Master In Lieu of Judicial Hearing Officer

Patterson Belknap Webb & Tyler LLP

Patterson Belknap Webb & Tyler LLP

In a recent order, Justice Andrea Masley assigned a special discovery master to supervise discovery in Hindlin v. Prescriptions Songs LLC, et al., a “complex commercial action” with a “multitude of discovery issues[.]”[1]  The decision underscores the constraints placed on the Commercial Division in light of the ongoing pandemic and cuts to the budget of the state’s judiciary.

The parties had requested that the Court designate a judicial hearing officer to supervise disclosure in the case, but Justice Masley explained that she could not grant their request because there are no judicial hearing officers currently available because of budget cuts.  Similarly, the Court noted that there are no court referees available and that the Court cannot “devote exclusive time and attention” to the lawsuit because it is “understaffed indefinitely because of a hiring freeze.”[2]  Specifically, Justice Masley explained that there are over 400 cases on her docket and that the number is growing daily, in part due to the fact that previously-assigned cases are being redistributed because another Commercial Division judge was appointed to the Appellate Division—leaving fewer judges on the court.[3]   

Despite those circumstances, the Court expressed that “[l]itigants should not suffer delay when the [Commercial Division] was established precisely to afford such business litigants efficiency.”[4]  Accordingly, the Court chose to appoint a special discovery master by utilizing its authority under CPLR 4212.  In explaining her decision, Justice Masley noted that, in the Commercial Division, the appointment of special discovery masters is not uncommon, although it is usually at the request of the parties, and that a volunteer program for special discovery masters had also been organized during a prior economic crisis in 1976.[5]  

CPLR 4212, the statute invoked by Justice Masley, provides that, “on its own initiative, the court may submit any issue of fact required to be decided by the court to an advisory jury or, upon a showing of some exceptional condition requiring it or in matters of account, to a referee to report.” 

Justice Masley explained that “extraordinary circumstances” exist today because of COVID-19 and the impact it has had economically.[6]

Thus, the Court appointed a former law firm partner who had volunteered to assist the Court as the special discovery master to supervise the parties’ discovery.[7] 

The Court provided the special discovery master with all of the powers available under CPLR 4201, which states that “[a] referee to inquire and report shall have the power to issue subpoenas, to administer oaths and to direct the parties to engage in and permit such disclosure proceedings as will expedite the disposition of the issues.” 

[1] Index No. 651974/2018, NYSCEF Doc. No. 449 (N.Y. Sup. Ct. Oct. 6, 2020).

[2] Id. at 1.

[3] Id. at 2.

[4] Id. at 1.

[5] Id. at 1-2.

[6] Id. at 2.

[7] Id. at 2 & n. 2.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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