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Kaplan v. Jones

Decided: October 29, 1962.

MARILYN J. KAPLAN, ET ALS., PLAINTIFFS,
v.
DOUGLAS E. JONES, ET ALS., DEFENDANTS



Civil Action. Motion to produce transcript.

Masucci, J.c.c. (temporarily assigned).

Masucci

[77 NJSuper Page 32] This is an automobile negligence action by Marilyn J. Kaplan against Douglas E. Jones and Clarence Jones. As a result of the accident, which occurred at an intersection in Point Pleasant, New Jersey, the plaintiff received a summons from the local police to appear in municipal court on a charge of careless driving. At the trial plaintiff's attorney hired, on his own volition, a court stenographer to take the testimony and make an informal transcript. The reporter was not sworn and the court was informed that the record was purely for plaintiff's benefit in anticipation of the civil action. The municipal magistrate agreed to the arrangement. The stenographer recorded testimony of two police officers and of the defendant driver.

This motion by the defendants in the civil action is for discovery under R.R. 4:24-1 to inspect the stenographic record or, in the alternative, to take the deposition of the stenographer with respect to the transcript.

The plaintiff has refused any access to the record, and the basis of the refusal is grounded in the work-product privilege and the failure of the moving party to establish "good cause," as required by the aforesaid rule. Defendant did not submit an affidavit with the motion papers.

In support of the argument that the defendant has failed to establish good cause, plaintiff cites Toth v. Bigelow , 12 N.J. Super. 359 (Ch. Div. 1951). In that case, a quiet title action, the plaintiff moved for an order to permit inspection of certain maps and files, stating in the application that "Each of the foregoing documents constitutes or contains evidence relating to the matters and issues involved in this action as is more fully shown in the affidavit of Frank A. Toth annexed hereto." The affidavit was, however, merely conclusionary, that on the advice of counsel, plaintiff thought the files and maps were relevant to his case. The court denied the application, without prejudice, holding that the requirement of "good cause shown" means that the moving party must set forth the facts upon which he bases his contention, not merely the conclusion that the items desired are material to his case. It is for the court to pass on the question of materiality or relevancy. At page 362 the court said:

"There must also be present good cause. Conclusions of the plaintiff or counsel can scarcely be said to be good cause."

This case is cited with approval by Judge Freund in Eilen v. Tappin's Inc. , 14 N.J. Super. 162 (App. Div. 1951). In that case the plaintiff sought inspection of the defendant corporation books in order to prove plaintiff's claim to additional compensation for the services. The court explained there what the moving party should establish

in the application for inspection of his adversary's papers:

"The notice of motion on the instant application for inspection merely listed the books and records subsequently specified in the order, and rested upon the conclusion that they constitute or contain evidence relevant to the subject matter of the action. In the affidavit in federal Form 24, the application is required to set forth all he knows which shows that each document is relevant to some issue in the action. It may be observed that the requirement is to state what he knows showing the relevancy of the material requested, not merely to state that it is relevant. There should be a showing by facts, as distinguished from mere opinions or conclusions. It is not essential that admissibility as evidence at the trial be established, but only a reasonable calculation that the inspection will lead to the discovery of admissible evidence. Generally speaking, a moving party must show that the documents sought to be inspected are necessary to, and will aid in, the preparation of his case; that they were relevant; and that denial of production would be prejudicial."

A clear statement of the law on this point is contained in the holding of Judge Stanton in L. N. Rosenbaum v. Holthausen , 9 N.J. Super. 484 (Ch. Div. 1950), to the effect that an application for discovery, devoid of any explanatory affidavit, is beyond the scope of the discovery rules, liberal as they may be.

It should be noted that in all the cases above cited the court dismissed the motion, but without prejudice, presumably to allow the moving ...


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