Motion for Protective Order in New Jersey

What Is a Motion for Protective Order?

Understanding the Grounds for a Motion for Protective Order

“In those instances, where the disclosure of confidential information must be made so that the court can grapple fairly with the issues, the parties may protect the confidentiality of their information by, among other means, requesting that the record be subject to a protective order, see R. 3:13-3(f) (criminal); R. 4:10-3 (civil), and the movant may further request that the application be considered incamera.” (See O Builders & Associates Inc. v. Yuna Corp. (2011) 206 N.J. 109, 129.)

“Furthermore, in those instances, as the one presented in this appeal, where the lawyer whose disqualification is sought denies ever receiving the claimed confidential information, an appropriate screening device would be to engage substitute counsel to oppose the disqualification motion.” (See id.)

“Rule 4:10-3 provides the means by which a person, including a party's attorney who objects to a deposition, can obtain protection against improper intrusion into the adversarial process by an improvidently issued deposition subpoena. That rule states in relevant part: Upon motion . . . by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect [the] . . . person from annoyance, embarrassment, oppression, or undue burden or expense.” (See Kerr v. Able Sanitary (1996) 295 N.J. Super. 147, 155.)

Drafting and Filing a Motion for Protective Order

“For good cause shown, the court may make an order which justice requires to protect a party from whom discovery is sought, by ordering that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.” (See Hammock by Hammock v. Hoffmann-LaRoche, Inc. (1995) 142 N.J. 356, 369.)

“Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including, but not limited to, one or more of the following:

That the discovery not be had;
That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
That discovery be conducted with no one present except persons designated by the court;
That a deposition after being sealed be opened only by order of the court;
That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to the motion.”

(See Hammock by Hammock v. Hoffmann-LaRoche, Inc. (1995) 142 N.J. 356, 368-69.)

“There is nothing in the rule that defines "good cause," or an "order which justice requires to protect a party." Recognizing that because all parties to litigation have a duty to engage in proper discovery, see R. 4:10-1 and -2, issuance of protective orders should be used sparingly.” (See id.)

Meeting the Standard of Review and Burdens of Proof for a Motion for Protective Order

“Implicit in R. 4:10-3 is the notion that the movant bears the burden of persuading the court that good cause exists for issuing the protective order.” (See D'Agostino v. Johnson Johnson, 242 N.J. Super. 267, 281, 576 A.2d 893 (App.Div.) [Under R. 4:10-3, the burden is clearly on the person to be deposed to show that a protective order is necessary.].)

“However, in situations involving a request to depose an opposing party's attorney, there are good reasons for shifting the burden to the proponent of the deposition to demonstrate the propriety and need for the deposition.” (See Kerr v. Able Sanitary (1996) 295 N.J. Super. 147, 155-56.)

“[W]e normally defer to a trial court's disposition of discovery matters, including the formulation of protective orders , unless the court has abused its discretion . . . .” (See Payton v. N.J. Tpk. Auth. (1997) 148 N.J. 524, 559; Allstate N.J. Ins. Co. v. Lajara, No. A-4188-14T3, at *11 (App. Div. Aug. 19, 2015).)

“[A]ppellate courts are not to intervene but instead will defer to a trial judge's discovery rulings absent an abuse of discretion or a judge's misunderstanding or misapplication of the law.” (See Ibid. [citing Pomerantz Paper Corp. v. New Cmty. Corp. (2011) 207 N.J. 344, 371.)

“We start from the premise that discovery rules 'are to be construed liberally in favor of broad pretrial discovery.” (See id. at 80 [quoting Payton v. N.J. Tpk. Auth. (1997) 148 N.J. 524, 535.) “Our court system has long been committed to the view that essential justice is better achieved when there has been full disclosure so that the parties are conversant with all the available facts.” (See Scavone v. Oliver, No. A-0159-19, at *15-16 (App. Div. May 24, 2021).)

Meeting and Confering for a Motion for Protective Order

“When a requesting party demands access to or copies of papers in an interrogatory, the responding party may decline by stating with specificity the reason for its noncompliance in response to the interrogatory. R. 4:17-5(b). When a responding party declines to turn over requested documents, the requesting party may file a motion to compel discovery, R. 4:23-5(c), after having made a good-faith attempt to meet and confer with the responding party or having notified the responding party that continued noncompliance with the discovery request will lead to a motion to compel, R. 1:6-2(c). In such circumstances, the court has the obligation to resolve the discovery dispute.” (See Brugaletta v. Garcia (2018) 234 N.J. 225, 249-50.)

Recent Case Law and Decision Discussing Motions for Protective Order

It is well settled that pursuant to N.J.S.A. 2A:84A-29. “A person waives his right or privilege to refuse to disclose or to prevent another from disclosing a specified matter if he or any other person while the holder thereof has (a) contracted with anyone not to claim the right or privilege or, (b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone.” (See Allstate N.J. Ins. Co. v. Lajara, No. A-4188-14T3, at *23 (App. Div. Aug. 19, 2015).)

It is also well settled that pursuant to Rule 4:10-2(a) discovery is permitted of “any matter, not privileged, which is relevant to the subject matter involved in the pending action. The relevance standard does not refer only to matters which would necessarily be admissible into evidence, but includes information reasonably calculated to lead to admissible evidence respecting the cause of action or its defense. Nevertheless, discovery of such material must be implemented by the trial court with some sensitivity to issues of privacy, confidentiality and privilege.” (See Madlinger v. N.J. Transit Corp., No. A-2310-16T2, at *6 (App. Div. Oct. 30, 2017).)

Documents for Motion for Protective Order in New Jersey

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Telebrands, Corp. Vs Tristar Products, In C. document preview

Notice of Motion for ESX-L-003058-24 submitted by HOFFMAN, BRIAN S, PRYOR …

223 pages

ESX-L-003058-24 05/03/2024 10:39:01 PM Pg 1 of 223 Trans ID: LCV20241141302 Brian Hoffman, Esq. 284782018 Pryor Cashman LLP 7 Times Square New York, New York 10036-6569 Telephone: (212) 421-4100 Facsimile: (212) 326-0806 bhoffman@pryorcashman.com Attorneys for Non-Party Telebrands Corp. : IN THE CIRCUIT COURT OF THE : EIGHTH JUDICIAL CIRCUIT IN AND …