Employee Should Not Have Been Ordered to Share Cost of a Court-Appointed Discovery Master in CEPA and NJLAD Case, New Jersey Appellate Division Holds

In Zehl v. City of Elizabeth Board of Education, a plaintiff of apparent limited means – a school cafeteria worker – asserted CEPA and NJLAD claims against her employer. A-1296-11T3 (N.J. App. Div. May 31, 2012). Discovery proved extensive, hotly contested and time consuming, and in an attempt to conserve judicial resources, the trial court appointed a discovery master to address and resolve all discovery disputes – at a rate of $450 per hour – with the cost to be split evenly by the parties. On appeal, the Appellate Division rejected the appointment of the discovery master, concluding that the financial burden placed upon the plaintiff by the court would hinder her ability to continue to litigate the case, effectively blocking her access to the courts. Suggesting the conclusion would be different if this was a class action or if the plaintiff was of greater means, the Appellate Division concluded that the trial court should have at least considered the plaintiff’s financial resources as well as the remedial nature of her claims (which were brought under fee-shifting statutes to protect victims of discrimination and whistleblowers who suffer retaliation for exposing wrongdoing), rather than focusing primarily upon the court’s own concerns.