On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket Number C-79-02.
Before Judges Petrella, Collester and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on October 20, 2003
In this appeal, we are asked to decide whether the Chancery Division General Equity Part may order pre-litigation discovery absent a showing that the requirements of R. 4:11 have been satisfied. We conclude that R. 4:11 provides the exclusive authority for the taking of court-sanctioned pre-litigation discovery. Thus, a party seeking to invoke the power of the court to engage in such discovery must satisfy the requirements of the rule.
Plaintiff is the Estate of John Johnson, a man who was killed in a one-vehicle motorcycle accident in the early morning hours of August 16, 2001. At the time of his death, Johnson had a blood alcohol level of 0.25%, or one and one-half times the legally presumptive level of intoxication. N.J.S.A. 39:4-50. According to an investigator hired by plaintiff's counsel, four witnesses"have furnished information" that decedent was"present" during the late evening hours of August 15, 2001, and the early morning hours of August 16, 2001, at one or more of the establishments owned or operated by defendants.
Armed with this information, plaintiff filed a verified complaint and order to show cause on October 8, 2002, in the General Equity Part seeking:
[A]n order providing for discovery and the issuance of Subpoenae for the purpose of deposing witnesses who probably have knowledge of a possible cause of action against the defendants, so as to permit plaintiff to determine whether a Complaint should be filed but may not do so without prefiling discovery to insure that any Complaint to be filed is the result of investigation and bona fides.
The court granted plaintiff's application and set a return date of November 12, 2002. On this date, defendants Grayce Tighe, Inc., and Joseph B. Tighe, Inc., appeared represented by counsel. Defendant BST, Inc., did not. Plaintiff's counsel described the basis for his application as follows:
I think it's most unfair to any defendant, your Honor, to file a suit without the rules. And the law requires a reasonable investigation to see if we have a bona fide cause of action. I over the years have done this, respectfully, many times.
In fairness, if there is no cause of action there will be no complaint. I think it's a traditional chancery cause of action to permit pre-trial discovery to search out whether we have a good-faith cause of action of not.
Defense counsel objected arguing that plaintiff's application did not meet the requirements of R. 4:11. He also emphasized that, although defendants' general liability carrier had agreed to pay his fees for this limited appearance, it was factually uncertain and legally unsettled whether the carrier would continue to finance defendants' legal representation in connection with an extended pre-litigation discovery process.
In granting plaintiff's application, the court made the following ruling:
I considered this, I considered [defense counsel's] opposition to it. Although we haven't received any opposition to the order to show cause, there is no provision in the order to show cause to compel any. I do think from an ...