Those familiar with civil litigation are no strangers to discovery disputes. Discovery issues can delay a case for months, even years – but worse yet, these disputes often come with a hefty price tag for litigants. To help streamline these disputes, the courts often appoint referees to supervise and streamline discovery by hearing and resolving disagreements amongst the parties, especially in more complex, contentious matters.
When a case becomes complex and/or overly contentious, CPLR 3104(a) authorizes New York courts to appoint referees to supervise disclosure (discovery) upon motion of any party, witness or upon the court’s own initiative. CPLR 3104(b) allows the court to designate a judicial hearing officer or a private attorney to serve as a referee and will issue an Order of Reference to refer the case to the designated referee. Once the referee is appointed, the parties will direct any discovery motions or arguments to the referee, instead of the court – the idea being that the referee should be able to hear and address the disputes much faster than a court with a massive docket can.
The most important, and often overlooked, language contained in subsection (b) of CPLR 3104 is the requirement that in the event the referee to be named by the court is a private attorney, the parties in the action must “stipulate”, or agree, to same and “the stipulation shall provide for payment of his fees[.]” This language is crucial because it prohibits the court from ordering the parties to utilize a private attorney as a referee. Instead, the parties must agree to utilize a private attorney and, more than that, they must actually come to an agreement as to how the private attorney referee will be paid. This is because when a private attorney, rather than a judicial hearing officer, is assigned as a referee, the parties are largely at the mercy of the private attorney’s fees and may not have much, if any, negotiating power. On the other hand, if the court instead assigns a judicial hearing officer, the parties are not required to compensate him or her for their services. In other words, if the court appoints a private attorney to oversee discovery, the parties are now not only responsible for their own attorneys’ fees, but the private attorney’s fees as well.
In some circumstances, this additional expense is simply insurmountable or may entirely outweigh the benefit of appointing the referee in the first place. Indeed, it can be a strategy for some parties to muddy the waters of a case and complicate discovery to the point that it makes their adversary question whether the cost of the litigation is justified. In this regard, CPLR 3104(b) can become another arrow in the quiver for a party trying to price out their adversary if the adversary is unaware that they have the choice to utilize a free judicial hearing officer rather than a costly private attorney as the referee.
While utilizing a private attorney as a referee can have its drawbacks, there can also be enormous benefits to having a private attorney act as referee over discovery. First, a private attorney should have more time than the court or the judicial hearing officer to address complex discovery issues. Moreover, a private attorney may also have more expertise or experience in the topic that the parties are disputing. Further, an attorney who is still practicing can have much more empathy for parties trapped in a discovery deadlock because they have recently been there themselves and may have learned creative ways to resolve certain disputes along the way.
There is one other aspect of CPLR 3104 that parties must be aware of when a referee is appointed. Pursuant to subsection (c), if a referee makes an order on a discovery dispute, an aggrieved party only has five days to make a motion for review of said order. This is drastically different from the 30 days a party has to make a motion for leave to reargue or renew a motion based upon a court’s order pursuant to CPLR 2221(d) and 2221(e). While this may not have immediate cost implications, missing this five-day deadline could cost you in the long run if the referee’s decision has a detrimental impact on your case.
In summary, in complex, and likely already expensive, litigations the parties should know that they have the right to a free judicial hearing officer, and their attorneys should familiarize themselves with CPLR 3104. It is important for attorneys and their clients to consider and weigh the cost of appointing a private attorney, who may charge significant amounts per hour, against the potential benefit of their expertise or overall streamlining of the case.
If you are a party to litigation and the court directs that discovery is to be supervised by a referee, make sure to discuss with your attorney the pros and cons of having a private attorney act as referee versus a judicial hearing officer. Know that you will likely be, at the least, partly responsible for such fees over and above your attorneys’ fees and know that you have the right not to agree to use a private attorney if you and your attorney feel the cost will outweigh the benefit.
The information provided in this article is for informational purposes only and does not constitute legal advice.
Jacqueline A. Rappel is a Litigation Partner at Forchelli Deegan Terrana LLP in Uniondale. She may be reached at jrappel@forchellilaw.com.
Gabriella E. Botticelli is a Litigation attorney at Forchelli Deegan Terrana LLP in Uniondale. She may be reached at gbotticelli@forchellilaw.com.
Reprinted with permission from the June 3, 2026, edition of the New York Law Journal © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com