Utilizing A Special Master/Referee In Complex Litigation: A Mediator's Personal Account

NAM (National Arbitration and Mediation)

NAM (National Arbitration and Mediation)

I was recently appointed Special Master (also known as a Special Referee) to supervise all pre-trial discovery in a matter pending in the New York State Supreme Court in the First Department pursuant to Civil Practice Law and Rules (CPLR) 3104(b). The litigation had been quite contentious prior to my appointment. 

There had been several motions to the court related to discovery issues leading up to my assignment. The parties clearly were having difficulty agreeing on anything and were barely civil to one another.  They simply could not agree on even basic issues. You could sense the animus – the exchanges between counsel were palpable. I now understood why the Presiding Justice felt the need to appoint a Special Master. He simply did not have the time or the resources that would be needed to move the case along to complete discovery and get the case on the trial calendar. As such, I was charged with ruling on all pending discovery issues, as well as all future applications regarding discovery as they arose.

Down to business

Upon receiving my assignment pre-pandemic, I was tasked to review the Order of Appointment. I poured over the file and transcripts of the oral arguments, after which I conferred with the Presiding Justice to review any additional details and nuances about the matter that he may have been privy to.

With both sides clearly at odds, I embarked on getting the parties to agree upon the discovery issues, even though initial attempts had failed through innumerable teleconferences and face-to-face meetings. Then the pandemic struck, and all conferences went virtual.  

Again, I attempted to broker a settlement, but quickly realized that it would not be feasible. I returned to my original mission with the goal of getting the parties to agree on some of the outstanding discovery. Many of these efforts resulted in an impasse whereby I issued rulings. Eventually, all of the document discovery was successfully completed.

Next, I supervised the virtual depositions of each side and made rulings during the EBTs (examination before trial). There were some post-EBT discovery which the parties could not agree upon, and again, I issued an order pertaining to the disputed post-EBT discovery. During the pendency of my appointment there was substantive motion practice which the Presiding Justice decided, as those issues were beyond the scope of my appointment. Once the Note of Issue was filed, my appointment essentially concluded.

Throughout the proceedings, I found it beneficial to confer with the assigned judge and keep him updated on the progress of the litigation.  Also, in many instances, a Special Master may be asked to return post-Note of Issue, due to new discovery matters that might have surfaced or to manage other issues.

Experience matters

Reflecting on my role as a Special Master, my experience as a former judge, and as a mediator, clearly were put to great use. My knowledge of the law, especially Article 31 of the CPLR, enabled me to make the necessary rulings.  And despite the visible enmity between both sides, my mediation skills were essential in bringing the parties together, and getting them to agree on many items, where initially, they refused to do so. In fact, several of the sessions mirrored a mediation, but of course were limited to the items of discovery at issue. When the parties could not agree, and a compromise could not be reached, my judicial experience was utilized to draft the appropriate order.  

State and Federal Rules

In State Court, the appointment of a Special Master/Referee is guided by CPLR Section 3104(b). In Federal Court, the Referee may be appointed pursuant to Rule 53 of the Federal Rules of Civil Procedure (FRCP).  Under both statutes, the appointment can be on consent or by order of the court via motion or on the court's own initiative. Whether the appointment is in State Court or Federal Court, the essential purpose of the appointment is for the Special Master to assist the court and the parties, in supervising and resolving all discovery matters and move a complex civil matter to trial. These broad powers may be modified through the order appointing the Referee.

Parties are also permitted to stipulate that a named attorney act as a Special Master. They are allowed to issue orders on document discovery, resolve claims of privilege, conduct in camera inspections, supervise depositions, and make rulings on objections raised at the EBTs.  Obviously, the Referee appointed must have no conflict of interest with any party or attorney involved in the case, and both sides must include a provision for payment to the Referee.

Once chosen, the Special Master has all the powers of the court, with the exception of holding someone in contempt, relieving himself/herself of their duties, or naming a Successor Referee.  There can be instances where the court or the parties have the Special Master/Referee handle other issues beyond discovery, but this must be specifically stated in the Order of Appointment. Finally, while a Judicial Hearing Officer (JHO) can also serve as a Referee, the court system has essentially cut back the JHO program.

Personal takeaways

In my role as Special Master, I was exclusively devoted to the case.  My schedule was flexible, and I was able to provide the time, energy, and attention to a complex matter, whereby a Supreme Court Judge could not. Additionally, counsel was able to reach me by phone, text, or email any time, day or evening. I was able to deal with issues as they arose, and if necessary, a videoconference could be arranged on the same day at their request. 

We are all well aware of the effect the pandemic has had on the legal profession and the courts, and although some of the restrictions have abated, the courts are still “catching up” to the backlog of cases that has occurred over the past two years. A Special Master can help move those cases forward and can reduce the burden on the Judge assigned to the case as well as saving time and money for the litigants. And if the parties are in agreement, the role of the Special Master can be expanded to include fact finding, mediation of a settlement, or even a specific issue, such as insurance coverage. In essence, the use of a Special Master is a win-win situation for the court, counsel and all parties involved. 

As for my experience, it was extremely gratifying knowing that I was able to assist the parties in cutting through the discovery clutter and helping them toward a mutually agreed upon resolution.


Reprinted with permission from the March 21, 2022 issue of The New York Law Journal © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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NAM (National Arbitration and Mediation)

NAM (National Arbitration and Mediation) on:

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