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In re Jerome A. Finkelstein

Decided: December 18, 1970.

IN THE MATTER OF JEROME A. FINKELSTEIN CHARGED WITH CONTEMPT OF COURT


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

Consodine

Deposition of one suspect of concealment of defendant's assets was taken for use on a motion. Defendant participated. His attorney did not attend. His participation demonstrated a clear intent to make a shambles of the proceeding. He climaxed interruptions, advices to the witness, remarks to counsel with the epithet to the attorney more redolent of another and far younger generation than his, "It takes a pig to represent a pig."

His conduct was a direct interference with the orderly administration of justice. Discovery is a pillar of the procedural edifice. Chief Justice Vanderbilt, speaking to this point in Lang v. Morgan's Home Equipment Corp. , 6 N.J. 333 (1951), stated:

Liberal procedures for discovery in preparation for trial are essential to any modern judicial system in which the search for truth in aid of justice is paramount and in which concealment and surprise are not to be tolerated. * * * [at 338]

Discovery has ancient roots. Its antecedents are in Roman law where actions interrogatorial and actions ad exhibendum compelled a defendant to make answer under oath to questions or to produce some specific thing. Phillimore, Private Law among the Romans , 182. The procedural and remedial machinery necessary to the extraordinary jurisdiction, exercised at first only permissively by the Chancellors of England,

developed over centuries into a Court of Chancery in the 14th Century. During all these centuries "there was always jurisdiction to give discovery." Whitfield v. Fausett , 1 Ves. Sen. 387, 392 (1750).

Generally, see: 1 Pomeroy, Equity Jurisprudence (5th ed. 1941) 275-336, 392-409; Ashburner, Principles of Equity (2d ed. 1933), 9, 10, 29-34; Spence, Equitable Jurisdiction of the Court of Chancery (1846) 411-413, 676-680; 1 Pollock and Maitland, History of English Law (2d ed. 1899) bk. 2, c. 111.

Both under the older and the current practice, discovery is accomplished away from the courtroom and in the absence of a judicial officer. Ordinarily, depositions are taken before a person authorized to administer oaths, usually a certified shorthand reporter. R. 4:12-1. The proceeding is not a public trial. Re Western of Canada Lands & Works Company, L.R. 6 Ch. Div. 109. It is ministerial in function but necessarily adjudicative to judicial process.

New York's counterpart of the deposition practice is examination before trial. A litigant who interfered with such an examination by referring to a witness as "a god damned liar" was held to be in criminal contempt. That the words were spoken in the heat of anger was no excuse. Sewards v. Rubin , 204 Misc. 172, 125 N.Y.S. 2d 776 (Sup. Ct. 1953).

It would appear that our courts have the same recourse. N.J.S.A. 2A:10-1 to 7, defining the power of courts to punish for contempt, lists three grounds, none of which fits this case. However, the statute by its words does not affect the inherent power of the Superior Court to punish for contempt. N.J.S.A. 2A:10-1; In re Caruba , 139 N.J. Eq. 404 (Ch. 1947).

I have searched without success for cases other than Seward v. Rubin, supra , or text reference concerning contempt citation for opprobrious conduct by parties (or anyone else) at a deposition hearing. However, dearth of precedent has never ...


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