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Nusbaum v. Newark Morning Ledger Co.

Decided: November 7, 1960.


For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Francis, J.


[33 NJ Page 420] Appellants, Herbert Lerner and Ida Rocklin, who are not parties to this action, were subpoenaed as witnesses by defendants during the course of pretrial discovery

proceedings. While being examined by defense counsel each of them refused to answer certain questions. The refusal was based upon privileges claimed to exist under the Federal Constitution and N.J.S. 2 A:81-5. Additionally, as to some of the questions, they asserted lack of memory of the subject matter. On application to the Superior Court, Law Division, an order was entered directing that answers be given to 34 questions, three of which had been put to Mrs. Rocklin and 31 to Lerner. Leave to appeal therefrom was granted by the Appellate Division and we certified the matter on our own motion prior to argument there.

The plaintiff Frances Nusbaum sued defendant Newark Morning Ledger Co. and some of its officers and employees, alleging that she had been libeled by a series of articles appearing in the Ledger's newspaper. The complaint alleges in substance that the articles charged her with being a member of the Communist Party or a knowing associate of members of such party, or a sympathizer with the doctrines and objectives of the party. The articles (according to the complaint) center about a meeting, alleged to be a Communist Party meeting, held in the home of a resident of the Town of Maplewood, New Jersey, the purpose of which allegedly was to consider and devise means of impeding and disparaging hearings which were about to be conducted by the Congressional Committee investigating Un-American activities.

Defendants' answer asserted, among other things:

"[t]he said publications to the extent of their relation of items of fact are true in substance and in fact, and to the extent that they represent comment upon the facts are fair comment upon the conduct of the plaintiff in her capacity as a participant in said meeting and subsequent affairs."

Also that:

"Whatever good name, fame and reputation plaintiff enjoyed or still enjoys in the community in which she resides was voluntarily jeopardized by her association and her identification with persons of known Communist affiliations and sympathies, and in doing so gave aid and comfort to their purposes and objectives, thereby consenting

to publication of fair comment and criticism relating to her connection with these persons in participating with them in the alleged meeting, and is therefore barred from recovery for the publications and expressions of opinions."

After issue was joined, defendants undertook extensive pretrial discovery in aid of their defense. Appellants were among the persons whose depositions were taken. It seems obvious from the interrogation that the purpose was to ascertain whether they and Mrs. Nusbaum were present at the meeting referred to in the newspaper articles, if Mrs. Rocklin and Lerner were members of the Communist Party, whether they associated with named persons known or suspected or alleged to be Party members or sympathizers, whether certain persons concededly present at the designated meeting were Party members or known or alleged to be such members or sympathizers, and whether the persons present at the meeting agreed to engage and did engage in activities intended to be disruptive of or to thwart the Congressional Committee hearings. In that connection the questions which the witnesses were placed under the mandate of the Law Division to answer may be divided into three categories: (1) personal membership in the Communist Party, (2) acquaintance or association with named persons, known or charged with being Party members or sympathizers, and (3) questions which they failed to answer because of asserted lack of recollection.

In this State broad and liberal trial preparation is strongly favored, to the end that causes may be fully and fairly presented and surprise avoided. But it is not without legitimate and necessary boundaries. R.R. 4:16-2 provides that:

"* * * the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the ...

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