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Vitti v. Brown

February 11, 2003

ANDREW VITTI, PLAINTIFF,
v.
MICHAEL E. BROWN, MARTHA, CRAWLEY, JOHN SCHIPANI, JOHN DOES, MARY DOES, ABC PARTNERSHIPS AND XYZ CORPORATIONS,



Todd, III, William C., P.J.Cv.

This is an action for damages for personal injury, pending in the Law Division. This opinion deals with a motion to extend the time for discovery filed after the time for discovery had expired and the matter had been scheduled for arbitration. That application is governed by the provisions of R. 4:24-1(c). In resolving the matter, the court is required to address the "exceptional circumstances" standard set forth in the rule. On that basis, the court has attempted to provide some definition to that term.

The complaint was filed December 3, 2001. The discovery end date was December 3, 2002. Some time ago, the matter was scheduled for mandatory non-binding arbitration on February 11, 2003. This motion to extend the time for discovery was filed January 22, 2003, more than six weeks after the discovery end date. It was returnable February 7, 2003, approximately four days before the scheduled arbitration. Defendants Brown and Crawley's motion was supported by a certification executed by defendants' counsel, which focused on prior settlement discussions involving plaintiff and a codefendant ("Schipani"), and attempted to explain defendants' failure to complete discovery earlier. Those negotiations occurred in the summer of 2002. Plaintiff initiated those negotiations with the representatives of codefendant Schipani. At one point codefendant Schipani's insurance carrier asked movant's carrier to contribute to a proposed settlement. That request was declined, and plaintiff reached a separate settlement with codefendant Schipani. A stipulation of dismissal was filed on September 10, 2002, confirming that settlement. Movant's attorney has now indicated he had concluded plaintiff would be willing to dismiss the claims asserted against his clients, based on the fact that plaintiff had not made any specific demand as to them, suggesting that justifies defendants' failure to pursue discovery prior to the discovery end date. Defendants now ask for an extension of the time for discovery to permit the plaintiff to be deposed, and to permit time for a medical examination by a physician selected by defendants. That application was opposed. Plaintiff's counsel properly notes that neither plaintiff nor plaintiff's attorney did anything to suggest the claims asserted against movant were being abandoned. For the reasons noted below, the motion to extend the time for discovery is denied.

R. 4:24-1(c) is one of several rules that deal with the time permitted for discovery, many of which were amended effective in September 2000, as a part of the "Best Practices" initiative. It is important to understand the relationship among the various rules bearing on the issue presented here.

Prior to September 2000, the time permitted for discovery was governed by R. 4:24-1, which dealt with the matter in relatively simple terms. Discovery was to be completed as to each defendant within 150 days of the date of service of the original complaint on that defendant unless an order was entered before the expiration of that period expanding the time for discovery. The rule required notice and a showing of good cause.

In a number of vicinages, differentiated case management programs had been implemented on an experimental basis. In those vicinages, cases were assigned to tracks and were given some additional time for discovery based on the track assignment. The time permitted for discovery in those programs generally ranged from 100 to 300 days, beginning with the issuance of the track assignment notice. Extensions were permitted, on motion. See the rules governing the Bergen and Camden differentiated case management programs appearing in the appendix to the 2000 Edition of the Rules Governing the Courts.

The rules were amended effective in September 2000, as a part of the "Best Practices" initiative. One new rule was enacted, as R. 4:5A, requiring that almost all civil actions filed in the Superior Court be assigned to one of four tracks. R. 4:24-1 was amended to provide discovery periods for each track and to deal more specifically with motions to extend the time for discovery. Notably, the time permitted for discovery was expanded substantially. Under the prior version of R. 4:24-1, discovery was permitted for a period of 150 days from the date of service of the complaint on the defendant in question. Under the new rules, the time for discovery ranges from 150 days for Track I cases to 450 days for Track III and Track IV cases. Under the new rules, the time for discovery does not begin to run until the date the first answer is filed or 90 days from the date the first defendant is served. In addition, the new rules permit an additional 60 days of discovery in each track, if consented to by the attorneys involved, without the filing of a formal motion. See R. 4:24-1(a) and R. 4:24-1(c) respectively. At the same time, R. 4:17-7 was amended, to require that any amendments to answers to interrogatories be provided at least 20 days prior to the end of discovery, and imposing more substantial restrictions on the right to offer such amendments after that time. Montiel v. Ingersoll, 347 N.J.Super 246, 789 A.2d 190 (Law Div. 2002). R. 4:21A-1 was amended to provide that all cases subject to mandatory non-binding arbitration would be scheduled for arbitration no later than 60 days following the end of the applicable discovery period. It was clearly contemplated that discovery would ordinarily be completed within the expanded periods allowed under the new rules. After September 2000, applications to extend the time for discovery should be the exception and not the rule.

It was in that context that the provisions of R. 4:24-1(c) dealing with motions to extend the time for discovery were amended in September 2000 and again in September 2002. As amended the rule now provides as follows:Extensions of Time. The parties may consent to extend the time for discovery for an additional 60 days. Such extension may be obtained by signed stipulation filed with the court or by application to the Civil Division Manager or team leader, by telephone or by letter copied to all parties, representing that all parties have consented to the extension. A consensual extension of discovery must be sought prior to the expiration of the discovery period. Any telephone application for extension must thereafter be confirmed in writing to all parties by the party seeking the extension. If the parties do not agree or a longer extension is sought, a motion for relief shall be filed with the Civil Presiding Judge or designee in Track I, II, and III cases and with the designated managing judge in Track IV cases, and made returnable prior to the conclusion of the applicable discovery period. The court may, for good cause shown, enter an order extending discovery for a stated period, and specifying the date by which discovery shall be completed. The extension order shall also describe the discovery to be engaged in and such other terms and conditions as may be appropriate. Absent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed. [R. 4:24-1(c).]

Obviously, the rule now requires a showing of good cause as a basis for any motion to extend the time for discovery returnable prior to the end of discovery, and a showing of exceptional circumstances as a basis for any motion presented after an arbitration or trial date is fixed. All matters are to be scheduled for arbitration or trial once the time for discovery is completed. This court has interpreted the rule as requiring a showing of exceptional circumstances whenever an application to extend the time for discovery is presented after the time for discovery has expired even if the matter has not yet been scheduled for arbitration or trial.

The exceptional circumstances requirement is new. The rule does not provide any specific definition for that term. Our appellate courts have not had occasion to address the matter in any published opinion. It is in that context that this court will attempt to provide some structure for the inquiry required by the rule.

The terms "good cause," "extraordinary circumstances," and "exceptional circumstances" have been used within our legal system in a variety of contexts. As to "good cause," see, e.g., R. 1:13-7(a) (reinstatement after dismissal for lack of prosecution), R. 1:40-6(d) (removal from mediation), R. 4:6-1(c) (extension of time for responsive pleading), R. 4:6-3 (deferral of preliminary hearings), R. 4:10-3 (protective orders), R. 4:21A-4(f) (relief from orders entered based on failure to appear for arbitration), and R. 4:43-3 (setting aside entry of default). With respect to "extraordinary circumstances," see, e.g., R. 1:4-8(b)(3) (law firm's joint liability for frivolous litigation sanctions), R. 1:8-6(a) (sequestration of juries), R. 4:38-2(b) (separate trials on liability and damages), and R. 4:41-1 (reference of hearing to a master). With respect to "exceptional circumstances," see, e.g., R. 1:13-7(a) (dismissal for lack of prosecution), R. 4:10-2(d)(3) (discovery from experts not expected to testify at trial), R. 4:16-1(c) (use of deposition testimony of witness who is absent but not unavailable), R. 4:23-5(a) (dismissal with prejudice for failure to make discovery), R. 4:43-2(d) (failure to apply for judgment by default).

R. 4:24-1(c) provides some limitation on the discovery process. For that reason, it is appropriate to consider the role discovery plays in our system of justice.

Discovery has two basic but distinct functions. First, the discovery process provides various methods of obtaining information which might otherwise be unavailable from any number of sources. By way of example, individuals or entities not otherwise involved in the litigation may be required to submit to depositions or to provide copies of documents in their possession. That type of information may be necessary to prepare the proofs which will be presented at arbitration or trial. Sometimes that information may be obtained from one's adversary, but that is not always the case. In addition, some of our discovery procedures can be used to require one's adversary to provide disclosure as to positions being taken in the litigation, and just what will be presented at arbitration or trial. Interrogatories are typically used for that purpose. In some circumstances the types of discovery or disclosure just noted may be essential to one's ability to proceed. In most cases, discovery will be helpful in preparing for arbitration or trial.

By the same token, not all discovery is essential. There are costs associated with the discovery process which may not be justified given the specific circumstances at issue. Discovery can be expensive, in terms of the time required of attorneys, litigants and third parties, and in terms of out of pocket expenses. If not pursued promptly and efficiently, discovery can result in substantial delay. Indeed, our rules recognize that the discovery process can be abused in a variety of ways. See R. 4:10-3, permitting applications for protective orders where the discovery process is being used to embarrass or oppress an adversary, or where it involves undue burden or expense. It is generally appropriate to balance the value of having disputes resolved promptly, the benefit of providing for discovery and the costs involved in the discovery process.

For those reasons, many disputes are resolved through the court system with little or no discovery. That is true for most summary proceedings, which sometimes involve substantial rights. In the Family Division disputes over support, custody and domestic violence are often resolved with little or no discovery. Many landlord-tenant disputes are dealt with in the same fashion. In the Law Division any number of proceedings may be handled in a summary fashion pursuant to R. 4:67. The time allowed for discovery is ...


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