Griffin, J.s.c. (temporarily assigned).
This court must decide if, under R. 4:14-7(b), (1) an attorney, who testified at a deposition concerning certain negotiations she conducted with defendants on her client's behalf prior to the commencement of the lawsuit, is an "authorized agent" of that client and therefore not entitled to reimbursement by the deposing party for her loss of pay and out-of-pocket expenses incurred while attending the deposition, and (2) whether that attorney should be reimbursed by the deposing party for the fee charged by her legal counsel for attending the deposition. No New Jersey cases have been found on either issue.
The parties have stipulated the facts. Patricia Breuninger, Esq., defendant herein, represented plaintiff in a Superior Court action entitled Bernadette Brehm v. Pine Acres Nursing Home, Inc., et al. The firm of McDonough, Murray & Korn, plaintiffs herein, represented one of the defendants. Miss Breuninger represented Bernadette Brehm prior to the institution of the Superior Court action and had certain communications with defendants before suit was commenced.
Mr. McDonough determined that Miss Breuninger might have knowledge of facts relevant to the action and accordingly sought to depose her as a potential witness. After failing in his
attempts to obtain Miss Breuninger's deposition voluntarily, McDonough applied for and received an order requiring her to submit to a deposition limited in scope to the contents of Miss Breuninger's communications with defendants. Miss Breuniger's deposition was taken at the Union County Courthouse on February 6, 1980, at which time she was represented by William E. Staehle, Esq.
Following the deposition, Miss Breuninger submitted a bill to McDonough, Murray & Korn in the amount of $228.50 for loss of income and expenses incurred while attending the deposition. She also submitted her attorney's bill for $225 for professional services rendered in representing her at the deposition. The parties agree that the amounts are reasonable.
McDonough informed Miss Breuninger by letter dated February 28, 1980 that his firm would not pay the bills on the ground that the Rules of Court do not require payment. But on March 26, 1980 McDonough's firm, apparently mindful of the Biblical injunction that when giving alms the left hand should not know what the right hand is doing,*fn1 paid both bills. The now ex-bookkeeper did it. Defendant refuses to return the money.
R. 4:14-7(b) provides, in pertinent part, as follows:
The party subpoenaing a witness, other than one subject to deposition on notice, shall reimburse him for the out-of-pocket expenses and loss of pay, if any, incurred by him in attending at the taking of depositions.
The Comment to the above rule explains this reimbursement provision as follows:
Plaintiff contends that Miss Breuninger attended the deposition in her capacity as "authorized ...