(a) Motion For, and Extent Of, Supervision of Disclosure. Upon the motion of any party or witness on notice to all parties or on its own initiative without notice, the court in which an action is pending may by one of its judges or a referee supervise all or part of any disclosure procedure.
§ 3104.Supervision of disclosure.
Article 31. Disclosure · Last amended 1983 · Last verified July 21, 2026
In one sentenceCPLR 3104 lets a court assign a judge or referee to supervise disclosure in a case, spells out how a referee is chosen and what powers the referee has, and sets a five-day window to seek judicial review of a referee's disclosure ruling.
Full Text of CPLR 3104
(b) Selection of Referee. A judicial hearing officer may be designated as a referee under this section, or the court may permit all of the parties in an action to stipulate that a named attorney may act as referee. In such latter event, the stipulation shall provide for payment of his fees which shall, unless otherwise agreed, be taxed as disbursements.
(c) Powers of Referee; Motions Referred to Person Supervising Disclosure. A referee under this section shall have all the powers of the court under this article except the power to relieve himself of his duties, to appoint a successor, or to adjudge any person guilty of contempt. All motions or applications made under this article shall be returnable before the judge or referee, designated under this section and after disposition, if requested by any party, his order shall be filed in the office of the clerk.
(d) Review of Order of Referee. Any party or witness may apply for review of an order made under this section by a referee. The application shall be by motion made in the court in which the action is pending within five days after the order is made. Service of a notice of motion for review shall suspend disclosure of the particular matter in dispute. If the question raised by the motion may affect the rights of a witness, notice shall be served on him personally or by mail at his last known address. It shall set forth succinctly the order complained of, the reason it is objectionable and the relief demanded.
(e) Payment of Expenses of Referee. Except where a judicial hearing officer has been designated a referee hereunder, the court may make an appropriate order for the payment of the reasonable expenses of the referee.
Plain-English Summary
Subdivision (a) lets the court supervise all or part of a case's disclosure through one of its own judges or through a referee, acting on a party's or witness's motion or entirely on its own. Courts turn to this when disclosure in a case is contentious enough, or technical enough, that ongoing hands-on management beats letting disputes pile up for separate motions. Subdivision (b) explains who can serve as referee: a judicial hearing officer can be designated, or the parties can stipulate to a named attorney, in which case the stipulation has to spell out how that attorney gets paid, ordinarily as a taxable disbursement.
Subdivision (c) hands the referee nearly the same disclosure powers the court itself has, with three exceptions: a referee cannot step down without permission, appoint a successor, or hold anyone in contempt. Every motion under Article 31 in a supervised case goes to the referee first, and the referee's order gets filed with the clerk if any party asks for that. Subdivision (d) is the check on that authority — any party or witness can seek review of a referee's order by motion in the court where the action is pending, but only within five days, and serving that motion automatically suspends disclosure of the disputed matter in the meantime. Because a witness's rights can be affected, the rule requires the witness be given notice of the review motion personally or by mail. Subdivision (e) leaves the referee's expenses to the court's discretion, except where a judicial hearing officer is serving, since that officer's compensation runs through the court system already.
Frequently Asked Questions
When will a New York court appoint a referee to supervise discovery?
On motion of any party or witness, or on the court's own initiative, when disclosure in a case needs ongoing hands-on management rather than a series of separate motions. Subdivision (a) leaves the decision to the court's discretion.
Who can serve as a discovery referee under CPLR 3104?
A judicial hearing officer, or an attorney the parties stipulate to by name. If the parties choose an attorney referee, their stipulation must address how that attorney gets paid, typically as a taxable disbursement.
What powers does a discovery referee have in New York?
Nearly all the powers the court itself has over disclosure under Article 31, except the referee cannot resign without permission, name a successor, or hold anyone in contempt. All disclosure motions in a supervised case go to the referee.
How do I challenge a referee's discovery ruling in New York?
Move for review in the court where the action is pending within five days after the referee's order, under subdivision (d). Serving that motion automatically suspends disclosure of the disputed matter while the court decides.
Does a non-party witness get notice if a referee's order affects them?
Yes. Subdivision (d) requires the witness be served personally or by mail at their last known address whenever a review motion may affect the witness's rights.
Who pays a discovery referee's expenses in New York?
The court sets a reasonable payment for the referee's expenses under subdivision (e), except that no separate payment is required where a judicial hearing officer has been designated as the referee.
Advisory Committee Notes
Subd (a) of this section is new. Former law permitted the appointment of referees to a limited extent. RCP 120, 142. The Federal courts have exercised their power to appoint a master under rule 53 in such complicated cases as Ferguson-Ford. Marsh, Pre-trial Discovery in an Anti-trust Case, 8 The Record 401 (1953). Our own courts have experimented with the designation of an official referee to hear all applications connected with discovery. This subdivision envisages the possibility of permanent official referees based on the English master system (e.g., Eng Rules of the Sup Ct O 30, O 54, rr. 12, 12A, O 55, r. 15, app K, Form 3A (The Annual Practice 1956)) whose sole job would be to act in this capacity and who would not be permitted to practice, as well as ad hoc referees as in the Federal system. Fed RCP 53. The provision is flexibly designed to permit referees to be used in those metropolitan areas where the volume of litigation warrants this device. Decisions with respect to assignment of referees might well be made by the Judicial Conference on the request of the Appellate Division. The Judiciary Law should regulate this subject as well as the qualifications of referees. A judge may exercise close supervision of disclosure where this seems warranted. Cf. 6A Mich Comp Laws Annotations, app 4, Court Rule 35, § 6 (1948); Jayne, Discovery: The New Michigan Rule, 40 ABAJ 304 (1954); Schureman, Discovery Docket Speeds Court Calendar, 23 Detroit Lawyer 55 (1954). Under this provision, the judge or referee could, for example, act as the officer before whom a deposition is taken, be present at any examination of a person, document or thing, and rule on the propriety of questions asked and answers given on depositions or interrogatories. The referee device should be considered with the problem of routinely assigning cases to particular judges for all pre-trial work in individual counties, districts or departments. This device has been used in some complicated Federal cases, such as the bankers anti-trust case presided over by Judge Medina. United States v Morgan Stanley & Co. 76 F Supp 621 (SD NY 1948). Assignment of a judge to a case early in the litigation has an important bearing on calendar control, waiver of juries, pre-trial hearings and effective disclosure. One of the difficulties with present Federal and former state practice is that too many judges might be involved in pre-trial work in a single case. Particularly in the Federal courts, complaints have been made that the judges cannot devote enough time to any one case, so that they are forced to either abdicate their responsibility to control disclosure or act arbitrarily.
Subd (b) of this section is new. Some notification to the court is required so that motions can be referred to the referee and so that the court will not make an appointment of its own.
Subd (c) of this section is based on the English practice. See, e.g., Eng Rules of the Sup Ct O 54, rr. 12, 12A (The Annual Practice 1956). The addition of the provision that the order need be filed only “if requested by any party” makes an exception to the general required filing of all orders. See CPLR rule 2220(a).
Subd (d) of this section is based, in part, on Queen’s Bench practice. See Ragland, Discovery Before Trial 92–93, 114–15 (1932). The English appeal is to a judge in chambers and not to the court. A distinction between parties and witnesses is made in order to permit interlocutory appeals by witnesses. The problems of appeals from the trial court to appellate courts is treated in CPLR article 55. A court has inherent power to punish litigants for using appeals for purposes of delay. See 8th Cir Rule 21(b); Massachusetts Bonding & Insurance Co. v Feutz, 182 F2d 752 (8th Cir 1950). The provision for service on a witness whose rights may be affected, personally or by mail at his last known address is designed to deal with the problem of serving witnesses who have departed the state. The language expressly requiring that the witness’ rights be affected also avoids the possible necessity of serving a witness in the case of every motion relating to his deposition.
Subd (e) of this section is required in order for the referee to supervise depositions taken outside the city. The problem of the mechanics of reimbursement is left to the court’s discretion.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1963, ch 307, § 1, eff Sept 1, 1963; L 1983, ch 840, § 3, eff April 1, 1983.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: discovery referee New Yorksupervise disclosure New Yorkjudicial hearing officer discoveryreview referee order discovery New Yorkdisclosure special master New York