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DISCOVERY IN NEW JERSEY
TABLE OF CONTENTS
TABLE OF CONTENTS
The discovery phase of litigation is exactly what it sounds like: the mandatory process by which parties “discover” information relevant to the case.
DISCOVERY IN THE FAMILY PART
Discovery in divorce proceedings is governed by Court Rule 5:5-1, which provides as follows:
“Except for summary actions and except as otherwise provided by law or rule, discovery in civil family actions shall be permitted as follows:
(a) Interrogatories as to all issues in all family actions may be served by any party as of course pursuant to R. 4:17.
(b) An interrogatory requesting financial information may be answered by reference to the case information statement required by R. 5:5-2.
(c) Depositions of any person, excluding family members under the age of 18, and including parties or experts, as of course may be taken pursuant to R. 4:11 et seq. and R. 4:10-2(d)(2) as to all matters except those relating to the elements that constitute grounds for divorce, dissolution of civil union, or termination of domestic partnership.
(d) All other discovery in family actions shall be permitted only by leave of court for good cause shown except for production of documents (R. 4:18-1); request for admissions (R. 4:22-1); and copies of documents referred to in pleadings (R. 4:18-2) which shall be permitted as of right.” [R. 5:5-1.]
SCOPE OF DISCOVERY
“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence; nor is it ground for objection that the examining party has knowledge of the matters as to which discovery is sought.” [R. 4:10-2(a).]
There are several discovery “tracks” in divorce cases, including the expedited track, the standard track, the priority track, and the complex track. [R. 5:5-1(e).]
Under the Rules of Court, “Discovery shall be completed within 90 days from the date of service of the original complaint in actions assigned to the expedited track and within 120 days from said date in actions assigned to the standard track. In actions assigned to the priority or complex track, time for completion of discovery shall be prescribed by case management order.” [R. 5:5-1(e).] From a practical standpoint, however, discovery often takes much longer to complete.
THE PURPOSE OF DISCOVERY
Discovery rules are designed “to further the public policies of expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation.” [Zaccardi v. Becker, 88 N.J. 245, 252 (1982).]
“The discovery rules were designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments rest upon real merits of the causes and not upon the skill and maneuvering of counsel.” [Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990).]
CASE MANAGEMENT ORDER
The deadlines are governed by a Case Management Order, which is generally entered after the Court holds a Case Management Conference to discuss those deadlines. The form of a Case Management Order is established under the Rules of Court, and it can be obtained here: [Appendix X: Case Management Order.]
METHODS OF DISCOVERY
Interrogatories. Interrogatories are written questions to which the opposing party must provide written responses. [R. 4:17, et seq.]
Discovery and Inspection of Documents & Property. Parties can issue to one another a Notice to Produce, which may include requests to produce documentation or physical objects. [R. 4:18, et seq.]
Physical and Mental Examinations of Persons. Parties may require one another to submit to physical or mental examinations. [R. 4:19.]
Requests for Admissions. A party may issue a Request for Admissions to his or her adversary. The request includes written statements that the opposing party is required to either admit or deny. If the opposing party does not respond within time, then the statements are deemed admitted for purposes of the litigation unless the Court, on motion, permits their amendment. [R. 4:22, et seq.]
Depositions. A litigant may conduct a deposition of the opposing party or any third parties in advance of trial to preserve his or her testimony. Such testimony can later be used against the adversary or to support your case. Attendance at a deposition is typically compelled by issuing a subpoena. [R. 4:11; R. 4:14; R. 4:15; R. 4:16.]
Discovery Subpoenas. Discovery subpoenas in New Jersey, as opposed to trial subpoenas, are a part of the ability to take depositions. You’re permitted to issue a discovery subpoena demanding production of documents or things only if it is accompanied by a request for the taking of testimony at a deposition. [R. 4:14-7(c).] When the intent is to obtain documentation, most attorneys simply indicate in the discovery subpoena (often referred by the Latin term “subpoena duces tecum”) that the person required to provide testimony at a deposition does not need to attend in-person if he or she produces the documentation instead.
There are many rules surrounding when and how to issue a discovery subpoena that are not addressed in this Guide, and compliance with those rules is very important. For attorneys, failure to adhere to the rules governing the use of subpoenas can constitute an ethical violation. [Welch v. Welch, 401 N.J. Super. 439 (Ch. Div. 2008).]
Subpoenas must be issued in accordance with the rules set forth under [R. 1:9, et seq.]
Failure without adequate excuse to obey a subpoena served upon any person may be deemed a contempt of the court from which the subpoena issued. [R. 1:9-5.]
BOUND BY ANSWERS TO DISCOVERY
You cannot introduce evidence at trial if it was requested but not produced in discovery. [Balian v. General Motors, 121 N.J. Super. 118 (App. Div. 1972).]
Further, you cannot introduce evidence that contradicts your answers to interrogatories. [D’Agostino v. Schaffer, 45 N.J. Super. 395 (App. Div. 1957).]
MUST DISCLOSE POTENTIAL WITNESSES
If requested, you must disclose the identity of individuals with knowledge relevant to the litigation: “Suffice it to say that if the people … interviewed have knowledge of relevant facts, their identity and location must be disclosed to plaintiff.” [Jenkins v. Rainner, 69 N.J. 50, 54 (1976).]
If you fail to disclose the names of witnesses in discovery, you cannot call those witnesses at trial. [Burke v. Central R. Co. of N.J., 42 N.J. Super. 387 (App. Div. 1956).]
DEFINING “POSSESSION, CUSTODY, OR CONTROL”
Court Rule 4:18-1(a) permits a request for any documents within the opposing party’s “possession, custody or control.” [R. 4:18-1(a).] Although a common response, stating that the document is not within a party’s possession is insufficient, as it fails to acknowledge the language of the controlling Court Rule, which also includes “custody or control.”
The term “control” is defined broadly and generally requires production of documents that a party can produce through “bona fide effort.” [Gross v. Kennedy, 15 N.J. Super. 118, 123 (Law Div. 1951); see also D’Agostino v. Schaffer, 45 N.J. Super. 395 (App. Div. 1957).]
The cases cited frequently rely on federal precedent and treatises for the definition of “possession, custody and control,” as our own Rules of Court, [R. 4:18-1(a)], are modeled after the Federal Rules of Civil Procedure, which utilize the identical term. [F.R.C.P. 34.]
The Third Circuit, which is a federal court and therefore non-binding on New Jersey Courts as to issues of state law, has held as follows: “In the context of Fed.R.Civ.P. 34(a), so long as the party has the legal right or ability to obtain the documents from another source upon demand, that party is deemed to have control.” [Mercy Catholic Medical Center v. Thompson, 380 F.3d 142 (3rd Cir. 2004).]
Also, our Rules of Court require that, in responding to a demand for production of documents, a party certify to the following: “I hereby certify (or aver) that I have reviewed the document production request and that I have made or caused to be made a good faith search for documents responsive to the request.” [R. 4:18-1(c).] Clearly, then, a party must at least make or cause to be made a good faith search for responsive documentation.
NEED NOT PRODUCE EVIDENCE UNLESS REQUESTED
“No rule requires a party to provide discovery unless requested to do so. R. 4:10-1 provides discovery methods by which one party can obtain information from another party in the form of ‘[d]epositions …; written interrogatories; production of documents or things; … and requests for admissions.’ Each rule is activated by a request by one party to another to provide discovery. Absent a request, no obligation exists to provide any information to an adversary. Absent a request for expert reports or a written interrogatory requesting information about experts, a party at trial may call any expert who can qualify and whose testimony is relevant to an issue in the case.” [Kiss v. Jacob, 268 N.J. Super. 235 (App. Div. 1993).]
USE OF EXPERTS
The use of experts in divorce proceedings is very common. In fact, the Court has the authority to appoint experts on its own even without a party’s request and over his or her objection. “Experts appointed hereunder may be selected by the mutual agreement of the parties or independently by the court. The court shall establish the scope of the expert’s assignment in the order of appointment. Neither party shall be bound by the report of the expert so appointed.” [R. 5:3-3(e).]
Furthermore, “[w]henever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts’ opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it. No such appointment, however, shall be made of an expert who is providing or has provided therapy to any member of that person’s family. The court may also require a social investigation by a probation officer or other person at any time during the proceeding before it.” [R. 5:3-3(a).]
Perhaps the most common use of experts in a divorce proceeding is a “best interests evaluation,” which is performed by a mental health professional and produces a report making recommendations to the Court on custody and parenting time. Under the Rules of Court, “[m]ental health experts who perform parenting/custody evaluations shall conduct strictly non-partisan evaluations to arrive at their view of the child’s best interests, regardless of who engages them. They should consider and include reference to criteria set forth in N.J.S.A. 9:2-4, as well as any other information or factors they believe pertinent to each case.” [R. 5:3-3(b).]
Many parties in divorce also have experts evaluate economic issues. Neither the parties nor their attorneys typically have the economic expertise necessary to make complex evaluations. For example, an expert might produce a report about the value of a business. Further, realtors or other experts frequently evaluate the value of a home. Under the Rules of Court, “[w]henever the court concludes that disposition of an economic issue will be assisted by expert opinion, it may in the same manner as provided in Paragraph (a) of this rule appoint an expert to appraise the value of any property or to report and recommend as to any other issue, and may further order any person or entity to produce documents or to make available for inspection any information or property, which is not privileged, that the court determines is necessary to aid the expert in rendering an opinion.” [R. 5:3-3(c).]
If a court-appointed expert produces a report, it should be provided to both parties and the Court. “Any finding or report by an expert appointed by the court shall be submitted upon completion to both the court and the parties. At the time of submission of the court’s experts’ reports, the reports of any other expert may be submitted by either party to the court and the other parties. The parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert.” [R. 5:3-3(f).]
If either party obtains an expert report on his or her own, the report is not generally discoverable unless the party intends to rely on it at trial. Such reports may be discovered only in limited circumstances provided for under the Rules of Court: “A party may discover facts known or opinions held by an expert (other than an expert who has conducted an examination pursuant to R. 4:19) who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means. If the court permits such discovery, it shall require the payment of the expert’s fee provided for by R. 4:10-2(d)(2), and unless manifest injustice would result, the payment by the party seeking discovery to the other party of a fair portion of the fees and expenses which had been reasonably incurred by the party retaining the expert in obtaining facts and opinions from that expert.” [R. 4:10-2(d)(3).]
The Court may assign how much each party must pay toward an expert it has appointed. [R. 5:3-3(i).]
SANCTIONS FOR FAILURE TO COMPLY WITH DISCOVERY
The Court may impose severe sanctions for failure to comply with discovery requests.
“A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances.” [Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995).]
If a person being deposed refuses to answer a question after being directed to answer, that refusal may be deemed a contempt of Court. [R. 4:23-2(a).]
If a party fails to obey an order to provide or permit discovery, the Court may:
“(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof with or without prejudice, or rendering a judgment by default against the disobedient party;
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders.” [R. 4:23-2(b).]
If a party fails to respond or provide discovery after being served with a valid request under Rule 4:17 (interrogatories); Rule 4:18 (demands for documentation; or Rule 4:19 (physical and mental examinations); the Court has the power to dismiss his or her pleadings “without prejudice.” [R. 4:23-5(a)(1).] A dismissal without prejudice still permits the case to be reinstated later.
The request to dismiss can only be made, however, by a party who is compliant with his or her discovery obligations; the Court Rule specifically requires the party requesting dismissal to certify that he or she is compliant before asking to dismiss the adversary’s pleadings: “The motion [for dismissal without prejudice for failure to make discovery] shall be supported by an affidavit reciting the facts of the delinquent party’s default and stating that the moving party is not in default in any discovery obligations owed to the delinquent party.” [R. 4:23-5(a)(1).]
The delinquent party will then be provided 60 days to comply, and if he or she still has not complied after 60 days, the party demanding the discovery can request that the Court dismiss “with prejudice.” A dismissal with prejudice means the case cannot be reinstated later. “The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.” [R. 4:23-5(a)(2).]
However, “[w]hen the real discovery dispute is not a failure to answer but rather an alleged failure to answer in a ‘fully responsive’ manner, it is the dismissal with prejudice which is inappropriate unless the answering party has been ordered to answer more fully and fails to do so. Beyond that, it is clear that if the answering party has provided sufficient information at least to withstand summary judgment, he may be bound in his trial presentation by his inadequate answers. Thus his inadequate answers constitute his risk, not his opponent’s, since the trial proofs may be limited by the content of the interrogatory answers.” [Zimmerman v. United Services Auto, 260 N.J. Super. 368, 377-78 (1992).]
Prior to moving for dismissal under the procedure discussed above, the party demanding discovery has the option to simply move for an ordering compelling the production of the demanded discovery.” [R. 4:23-5(c).]
Andrew M. Shaw is the author of My New Jersey Divorce and a divorce and family attorney with the DeTommaso Law Group in Somerville, New Jersey. CLICK HERE to schedule a consultation.
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