Motion for Sanctions for Failure to Comply with Discovery in New Jersey

What Is a Motion for Sanctions for Failure to Comply with Discovery?

Grounds for Filing a Motion for Discovery Sanctions

“If a demand for discovery pursuant to R. 4:17, R. 4:18, or R. 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may . . . move, on notice, for an order dismissing or suppressing the pleading of the delinquent party.

Requirements for Drafting and Filing a Motion for Discovery Sanctions

The motion 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. Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice.” (See Synkriom, Inc. v. Larsen & Toubro Infotech Ltd., No. A-1916-19, at *6 (App. Div. Apr. 13, 2021).)

“Once a trial court dismisses a complaint without prejudice, the moving party may pursue the second step of a Rule 4:23-5(a)(2) action, dismissal with prejudice. If the delinquent party does not cure its discovery deficiency, the moving party may move for a motion to dismiss the complaint with prejudice, sixty days after the complaint was dismissed without prejudice, under Rule 4:23-5(a)(1).” (See Sullivan v. Coverings & Installation, Inc. (2008) 403 N.J. Super. 86, 93.)

Reinstating the Complaint Following Discovery Dismissal Sanction

“In order to restore the complaint, the delinquent party must pay the court $100 if within thirty days of the dismissal, or $300 if after thirty days but before ninety days. R. 4:23-5(a)(1). The complaint may be restored at any time prior to dismissal with prejudice if the delinquent party cured its deficient discovery and satisfied any other conditions imposed on them by the court.” (See Sullivan, 403 N.J. Super. at 94; Synkriom, Inc. v. Larsen & Toubro Infotech Ltd., No. A-1916-19, at *7-8 (App. Div. Apr. 13, 2021).)

“The sanction of dismissal should be used sparingly, in only those cases where the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious.” (See Corp. Realty Servs., LLC v. Croghan, No. A-2772-15T1, at *10-11 (App. Div. July 10, 2018).)

“If a deponent fails to answer a question propounded or submitted under R. 4:14 or 4:15, or a corporation or other entity fails to make a designation under R. 4:14–2(c) or 4:15–1, the discovering party may move for an order compelling an answer or designation in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion pursuant to R. 4:10–3.” (See Segal v. Lynch (2012) 211 N.J. 230, 256-57.

“For the purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” (See id.)

Discretion of the Court, Standard of Review, and Burdens of Proof for Discovery Sanctions

“Where authorized, as here, the allowance of costs is generally committed to the court's discretion.” (See Fortugno Realty Co. v. Shiavone-Bonomo Corp. (1963) 39 N.J. 382 , 396, 189 A.2d 7; Hirsch v. Tushill, Ltd., Inc. (1988) 110 N.J. 644 , 646, 542 A.2d 897; Oliviero v. Porter Hayden Co. (1990) 241 N.J. Super. 381, 391.)

“The Rule is not a source of authorization to courts to award fees as a sort of generally available sanction for discovery violations, but instead is confined by its terms to very specific kinds of discovery violations.” (See Segal v. Lynch (2012) 211 N.J. 230, 257.)

“The rule that authorizes motions and sanctions concerning a party's failure to make discovery is Rule 4:23-5. This rule "codified a two-step procedural paradigm that must be strictly-adhered to before the sanction of dismissal of a complaint with prejudice for failing to answer interrogatories or provide other discovery can be imposed.” (See Thabo v. Z Transp. (2017) 452 N.J. Super. 359, 369, 174 A.3d 531 [citing St. James AME Dev. Corp. v. City of Jersey City (2008) 403 N.J. Super. 480, 484, 959 A.2d 274.) “These procedural requirements must be scrupulously followed and technically complied with.” (See Ibid. [citing Sullivan v. Coverings & Installation, Inc. (2008) 403 N.J. Super. 86, 95, 957 A.2d 216; Salazar v. MKGC Design (2019) 458 N.J. Super. 551, 560.)

“Rule 4:23-5(a)(1) requires that a movant support the motion by an affidavit that recites the facts of the delinquent party's default, and states that the moving party is not in default in any discovery obligations owed to the delinquent party. This requirement safeguards against the unilateral imposition of sanctions upon one party when all parties have disregarded their discovery obligations. (See Salazar v. MKGC Design (2019) 458 N.J. Super. 551, 560-61.)

“Rule 4:23-2(b)(3) permits a court to enter an “order striking out pleadings or parts thereof . . . with or without prejudice, or rendering a judgment by default against the disobedient party who fails to obey an order to provide or permit discovery. In its consideration of the ultimate sanction of striking a pleading, a judge must weigh the delinquent party's right to an adjudication on the merits with the other party's right to expect compliance with the discovery rules and orders.” (See Zaccardi v. Becker (1982) 88 N.J. 245, 256-58.)

Rule 4:24-2 is entitled Motions Required to Be Made During Discovery Period. “The rule provides in pertinent part: Unless the court otherwise permits for good cause shown, motions to compel discovery and to impose or enforce sanctions for failure to provide discovery must be made returnable prior to the expiration of the discovery period.” (See Salazar v. MKGC Design (2019) 458 N.J. Super. 551, 558.)

Requirement of Parties to Meet and Confer in Discovery Disputes

“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 Court Decisions Concerning Motions for Discovery Sanctions

It is well settled pursuant to Rule 1:2-4(a) “if a party or counsel, ‘without just excuse’ or for failure to give reasonable attention to the matter requires "an application . . . for an adjournment, the court may order . . . (a) the payment by the delinquent attorney . . . of costs, in such amount as the court shall fix, to the Clerk of the County in which the action is to be tried. . . .” (See Oliviero v. Porter Hayden Co. (1990) 241 N.J. Super. 381, 390.)

It is also well settled that pursuant to Rule 4:23-5, “a court to sanction a party who has failed to furnish an expert's report. The rule states: The court at trial may exclude the testimony of a treating physician or any other expert whose report is not furnished pursuant to [Rule ] 4:17-4(a) to the party demanding same. R. 4:23-5(b) (emphasis added). Rule 4:17-4(a) provides in pertinent part: If the interrogatory requests the name of an expert or treating physician of the answering party or a copy of the expert's or treating physician's report, the party shall comply with the requirements of paragraph (e) of this rule.” (See Salazar v. MKGC Design (2019) 458 N.J. Super. 551, 561.)

Documents for Motion for Sanctions—Failure to Comply with Discovery in New Jersey

Sort By

MOTION TO COMPEL DISCOVERY submitted by SWIST, JOSEPH, ZACHARY of MORGAN &…

20 pages

CAM-L-001961-22 06/27/2023 4:04:48 PM Pg 1 of 17 Trans ID: LCV20231909253 MORGAN & MORGAN, PLLC Attorney for Plaintiff By: Joseph Z. Swist, Esquire jswist@forthepeople.com Identification No. 218772017 One Commerce Square 2005 Market Street, Suite 350 Philadelphia, PA 19103 267-780-2965 (Phone) 267-780-2950 (Fax) CAROLLEE LERRO SUPERIOR COURT OF NEW JERSEY …