On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-128-00.
Before Judges Skillman, Carchman and Wells.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
The authority of an attorney to issue a discovery subpoena duces tecum under the seal of the Superior Court pursuant to R. 4:14-7(c) (the Rule) "is a significant one which must be exercised in good faith and in strict adherence to the rules to eliminate potential abuses." Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 569 (App. Div. 2000). Unfortunately, violations of the Rule are both "recurring and vexing." Id. at 560. Failure to adhere to the Rule's provisions may result in the improper and unauthorized acquisition of records and documents that, although ultimately discoverable, may expose third parties to potential liability as well as infringe on the lawful rights and privileges of those against whom discovery is sought. This is what happened here. An attorney failed to comply with the provisions of the Rule, and a doctor, improperly responding to a discovery subpoena, forwarded privileged records of his patient without notice or authorization. The patient brought an action for damages against both the lawyer and the doctor. We conclude that the complaint stated a viable claim against both parties and reverse the order of the Law Division dismissing the complaint.
Because the judge granted a motion to dismiss for failure to state a cause of action upon which relief can be granted, we accept the alleged facts as true. See Rieder v. State, Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). In May 1998, plaintiff Antoinette Crescenzo, f/k/a Antoinette Santora, was named as a defendant in a dissolution complaint filed by her husband Mark A. Santora (the husband). The complaint included the issue of custody of the parties' child. The husband was represented in that action and a related domestic violence action by Robert J. Pinizzotto, Esquire.
In 1992, plaintiff sought treatment from defendant Walter D. Crane, D.O., a licensed physician in New Jersey, for injuries received as a result of an automobile accident. Thereafter, Crane became plaintiff's "family doctor," and both she and her daughter treated with him on a regular basis when necessary. In May 1997, plaintiff sought treatment from Crane for a head injury. At the same time, plaintiff confided in Crane, discussing her deteriorating marriage and recent stress related symptoms she was experiencing. Crane diagnosed plaintiff as suffering from depression and prescribed Prozac. Plaintiff continued to treat with Crane and discuss her symptoms.
In May 1998, plaintiff's husband filed a complaint for dissolution against plaintiff.*fn1 On May 7, 1998, Pinizzotto served Crane with a subpoena duces tecum which provided in relevant part:
THE STATE OF NEW JERSEY, TO: Dr. Walter Crane 219 N. White Horse Pike Hammonton, NJ 08037
You are hereby commanded to attend and give testimony before the above named attorney at 105 N. White Horse Pike, Hammonton, NJ 08037 on the 12th day of May, 1998, at 10:00 o'clock A.M., on the part of Defendant, Mark A. Santora in the above entitled action, and that you have and bring with you and produce at the same time and place, the following:
Any and all medical records of Antoinette Santora.
Failure to appear according to the command of this Subpoena will subject you to a penalty, damages in a Civil Suit and punishment for contempt of Court.
ROBERT J. PINIZZOTTO, ESQUIRE STEVEN W. TOWNSEND, Attorney for ...