This is a medical malpractice action. The question herein presented is whether defendant Dr. Lee must submit to his deposition being taken before he has had an opportunity to review the report of plaintiff's expert.
The factual background may briefly be stated. This suit arises out of treatment received by plaintiff's decedent in the emergency room of the Atlantic City Medical Center on April 6, 1977. Discovery was initiated by defendant by interrogatories propounded on plaintiff while the complaint was being served. One interrogatory sought copies of plaintiff's proposed expert's reports. In response plaintiff set forth the name of his expert but stated that report to be "not available in that he requires additional facts to be developed on deposition of Dr. Lee" (defendant). Thereafter plaintiff served notice to take defendant's deposition on November 16, 1979. Defendant refused to appear without first obtaining the expert's report. Depositions were rescheduled for two different dates but met with the same objection. Plaintiff then moved for an order suppressing defendant's answer and defenses pursuant to R. 4:23-4. In response defendant filed this cross-motion to stay his deposition pending receipt of plaintiff's expert's report.
Without the expert's report defendant contends he will be at a tactical disadvantage at his deposition. At this juncture he claims there are no in-depth allegations regarding negligence or any suggestions as to proper procedures which should have been followed or instructions which should have been given. He argues that he is entitled to have the expert's report with its specific charges of malpractice so that he may know before his deposition is taken what it is plaintiff claims he should have done.
Plaintiff points out that defendant has already answered interrogatories without obtaining a copy of plaintiff's expert's
report and that if a report of plaintiff's expert's were submitted it would be incomplete at best and would have to be supplemented after Dr. Lee's deposition was taken. The applicable rule provides:
Unless the court upon motion, for the convenience of parties and witnesses and in the interest of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not, of itself, operate to delay any other party's discovery. [R. 4:10-4; emphasis supplied]
This rule, adopted as part of the 1972 revision of the discovery rules, is taken verbatim from Fed.R.Civ.P. 26(d), adopted in 1970. While the rule gives the court discretion to vary the sequence of discovery "for the convenience of parties and witnesses and in the interests of justice," its application has not yet been decided by our court. Guidance may, however, be found in federal case law.
Until 1970 the Federal Rules of Civil Procedure said nothing about the order in which depositions were to be taken or other discovery devices used. A rule of priority developed by case law, however which allowed the party who first served notice of taking depositions to complete at least the noticed depositions before his opponent could take any depositions. Warning Lites Co. v. Leggitt , 32 F.R.D. 431, 433 (W.D.Tex.1963); Shulman Inc. v. Shertz , 18 F.R.D. 94 (E.D.Pa.1955); Grauer v. Schenley Prods. Co. , 26 F. Supp. 768 (S.D.N.Y.1938). Some courts went beyond this to hold that the priority thus obtained extended to all discovery devices, so that a party who had won priority by serving a notice to take depositions was not required to respond to interrogatories, requests for admission or production of documents until he had completed depositions. Wright & Miller, Federal Practice and Procedure: Civil , § 2045. Solomon R. Guggenheim Foundation v. State Nat'l Bank of Conn. , 45 F.R.D. 31 (D.Conn.1968); E.I. Du Pont De Nemours & Co. v. Phillips Petroleum Co. , 23 F.R.D. 237 (D.Del.1959).
Other courts carved out an exception to the priority rule when priority was based on service of interrogatories, holding that the rule only applied to depositions. Struthers Scientific & Int'l Corp. v. General Foods , 290 F. Supp. 122 (S.D.Tex.1968); Nedd v. Thomas , 47 F.R.D. 551, 554 (M.D.Pa.1969).
In 1970 Fed.R.Civ.P. 26(d) was amended to remedy the unfairness caused by strict application of the rule of priority. There is no rule of priority under the amended rule, and except where the court otherwise orders "for the convenience of parties and witnesses and in the interests of justice," the fact ...