Under Federal Rule of Civil Procedure 53, federal judges have the authority to appoint a special master, without the parties' consent, to be paid by the parties, to “address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” See FRCP Rule 53(a)(1)(C). The rule directs that the appointing court “consider the fairness of imposing the likely expenses on the parties and must protect against unreasonable expense or delay.” Rule 53(a)(3).

We believe that such a rule ought to be adopted in our state civil practice, especially in matters involving complex commercial litigation. Commercial litigators have called for New York state courts handling commercial cases to be authorized to use special masters in the manner of the federal courts. In 2012, the Chief Judge's Task Force on Commercial Litigation in the 21st Century recommended that we “[c]reate a panel of 'Special Masters' drawn from our State's seasoned commercial litigators who are no longer in active practice and are available for appointment by the court—upon the consent, and at the expense, of the parties” (emphasis added). The following year, at a panel discussion held by the Commercial and Federal Litigation Section of the New York State Bar Association in January 2013, the focus was on how to implement the recommendations of the Task Force, and it was agreed that “the use of special masters, which are paid by the parties, to handle pretrial matters like discovery disputes is key to streamlining [commercial] litigation.” Brendan Pierson, “Panel Suggest Ways to Execute Reforms to Commercial Division,” N.Y.L.J., Jan. 24, 2013 at 1, col. 3.

CPLR 3104 authorizes judges to appoint referees or judicial hearing officers to supervise disclosure; it allows private attorneys to serve as referees to supervise disclosure only where the parties so stipulate. CPLR 3104(b); see Ploski v. Riverwood Owners, 255 A.D.2d 24 (2d Dept. 1999). In areas other than the supervision of disclosure, the appointment of private attorneys as special masters (without the parties' consent) is only permitted in special programs where the Chief Administrator has specifically approved of their use, and that regulatory authorization only provides for uncompensated service. See Uniform Rules of the Trial Court, 22 NYCRR §202.14.