Whistleblower Rights Trump Discretion of the Court

The Appellate Division of the New Jersey Superior Court, in Zehl v. Elizabeth Board of Education, et al., recently overturned a lower court’s appointment of a discovery master in a case involving whistleblower rights, on the principle that requiring the plaintiff to pay for an expensive litigation process would undermine equal access to the courts and deter litigants from pursuing these types of claims.

This case involved Catherine Zehl, who worked as a cook for the Elizabeth School District. While on the job, she reported a teacher’s misconduct to the school. Ms. Zehl claimed her employer retaliated against her for speaking up by placing her to work in another school. While at the other school, Ms. Zehl complained about mice, gnats, cockroaches, and feces in the kitchen and stock room. She alleged she was retaliated against again when the school board eventually informed her that they were not renewing her contract.

Ms. Zehl subsequently filed a lawsuit against the school board under the Conscientious Employment Protection Act (CEPA), alleging that she faced illegal retaliation. The lawsuit resulted in voluminous and repeated motions being filed by both parties during the discovery stage. Ultimately, the trial judge appointed a discovery master to address and resolve the parties’ discovery-related disputes and motions. The discovery master was appointed at the rate of $450 per hour, to be divided between the parties. The judge stated that a discovery master was warranted due to the “rancous and contentious nature” of the litigation. Ms. Zehl objected to using a discovery master arguing that there were no extraordinary circumstances warranting the appointment.

In reaching its decision to overturn the appointment of the discovery master, the Appellate Division reconciled two important policy objectives. First, the Court analyzed the continuing need for tools and procedures to ensure that litigation is conducted in an orderly and efficient manner. Second, the Court analyzed the safeguarding of judicial access for litigants prosecuting remedial actions pursuant to CEPA. The Court concluded that public policy evinced in remedial litigation, such as those brought under CEPA, must be at the forefront of any decision involving the appointment of a discovery master. The Court found that public policy would be thwarted if litigants bringing these lawsuits had to face significant costs. The Court stated that significant costs can deter litigants, who often have limited resources, from pursuing CEPA claims.

We believe that the Appellate Division made the right call. Employees who have faced retaliation for exposing misconduct should not have to face an additional burden of paying for an expensive discovery master. This decision is significant as the Court clearly understood the important policy objectives of CEPA and acted to ensure that the path to prosecuting these types of claims remains easily navigable.