Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County.
This appeal requires us to address the recurring and vexing problem of violations of the discovery subpoena and notice provisions of R. 4:14-7(c) (the Rule) and the appropriate sanction for violating the Rule. In this case, the violation resulted in defendant obtaining privileged medical and psychiatric records. Judge Bernhard imposed a sanction disqualifying counsel from further representation of defendant in the underlying matter. We granted leave to appeal and now conclude that the judge's findings of a violation of the Rule were supported by the record. Under the circumstances presented, disqualification was an appropriate sanction and not an abuse of discretion.
The issue arises in the following factual and procedural context. Following a slip and fall on an icy sidewalk outside of his condominium, plaintiff Tony Cavallaro filed a personal injury action for damages alleging permanent injury to his ankle. During plaintiff's deposition, his attorney instructed him not to answer certain inquiries regarding prior treatment for depression. After plaintiff's motion for a protective order was denied with limiting conditions, plaintiff answered questions concerning his medications and doctors' identities, and executed releases for certain medical and employment records previously subpoenaed by plaintiff. Although the judge had advised that defendant could subpoena records for any additional information needed and, anticipating an objection, that plaintiff could object pursuant to R. 4:10-3, defendant did not request any additional authorizations to release records concerning plaintiff's depression.
On March 2, 2000, defendant served subpoenas duces tecum and notices of depositions, returnable on March 10, 2000, on five additional medical and health services providers, including an infectious diseases specialist, a psychiatrist, and two psychologists (March 10 doctors' subpoenas), as well a vocational rehabilitation organization. The depositions were scheduled for defense counsel's office in Wall Township, Monmouth County, notwithstanding that the witnesses were located in Hunterdon and Somerset Counties. Although copies of the subpoenas and notices were also served on plaintiff's counsel, unbeknownst to plaintiff, the originals were accompanied by a cover letter which provided:
Attached please find a Subpoena and a deposition notice which requires your appearance in my office on March 10, 2000. At that time, you are required to produce copies of the following documents regarding [plaintiff];
1. All patient information forms, including history documents;
However, as a convenience to you, if you would like to forward copies of these documents to my attention, then your appearance would not be necessary. The subpoenaed evidence may not be produced or released until the date specified for the taking of the deposition. If you are notified that a motion to quash the subpoena has been filed, you may not produce or release the evidence until either ordered to by the court, or all the parties consent thereto. . . .
In bold, capitalized type immediately following the above paragraph, the letter stated:
IF YOU WOULD LIKE TO AVOID APPEARING IN MY OFFICE ON MARCH 10, 2000 AND WOULD RATHER FORWARD THE COPIES TO ME THAT WOULD BE ACCEPTABLE.
Please contact this office if you will be attending the deposition. Otherwise, I will assume that the above is agreeable.
On March 9, 2000, plaintiff contacted one of the psychologists, Dr. Kate Riley, to obtain her fax number to send her a copy of plaintiff's motion for a protective order and to quash the subpoena. The doctor informed counsel that consistent with the cover letter sent with the subpoena, she had already forwarded a summary of plaintiff's treatment records to defendant's attorney. Dr. Riley's "impression was that she had to send the information before March 10 in order to avoid appearing for a deposition on March 10," and she had not understood from the cover letter or subpoena that there was any requirement to refrain from sending the records before the return date. Despite the requirement of the Rule, plaintiff did not receive any "forthwith" notice of defendant's receipt of Dr. Riley's records. The infectious diseases specialist, Dr. Joseph Gugliotta, also received defendant's subpoena cover letter and sent plaintiff's medical records to defendant. Those records were later forwarded to plaintiff on demand.
Upon discovering that Dr. Riley had already released a summary of plaintiff's treatment records, plaintiff immediately filed a motion seeking an order to quash the March 10 subpoenas and a protective order prohibiting any use of information already obtained through those subpoenas. The motion was premised on defendant's failure to comply with the Rule, and in the case of the doctors, that the records sought related to "communications between plaintiff and psychologists and/or psychiatrists" which were protected by the psychologist-patient privilege pursuant to N.J.S.A. 45:14B-28, N.J.R.E. 505, and Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996). Counsel also requested that privileged notations regarding plaintiff's psychiatric care and contained within previously subpoenaed records of ...