On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-574-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically January 10, 2008
Before Judges Stern, Collester and C. L. Miniman.
Defendants appeal from a judgment of April 30, 2007, entitled "order for injunction with restraints to preserve material evidence," enjoining defendants Royal Coachman Leasing, Trevor L. Harrison, Andrew Siegeltuch, Carl Beck and Beck Adjusting Services (hereinafter "defendants"),*fn1 from doing anything to destroy all evidence of an accident of December 13, 2006, and requiring them to "preserve in tact and at their expense the 2005 Lincoln Town Car" at Reliance Auto Body as well as "components and parts" of the car and what plaintiffs describe as a "digital video file" and "electronic recording device" in the car at the time of the accident.*fn2 Defendants also say they are appealing from an order to show cause entered on February 28, 2007 imposing temporary restraints. However, that order is clearly an interlocutory order resulting in the April 30, 2007 order which also dismissed the complaint "without prejudice" but subject to the injunction pending the filing of the complaint in the personal injury action.
The accident occurred on Interstate 287, and plaintiffs want the evidence preserved pending the commencement of a personal injury action. Defendants are the driver and owner of the limo and their investigators and attorney. They insist that the order constitutes an "abuse of the discovery process" and "violates the letter and spirit of our Rules of Court." Plaintiffs claim they cannot yet file their suit and have the right "to compel non-parties to preserve this evidence" under Rules 4:11-1 and 4:18-1(c), and that the Law Division did not abuse its discretion in entering the orders.
Defendants argue that in order to obtain relief under Rule 4:11, plaintiff*fn3 has to show that he is "presently unable to bring [the personal injury action] or cause it to be brought," at this time, R. 4:11-1, and even if he can bring such an action now, he may not obtain injunctive relief without a showing of "irreparable harm," see R. 4:52-1(a). Moreover the defendants argue the injunction against counsel has a "chilling effect on communications between attorneys and their clients."
One of the reasons plaintiff asserted that he could not presently file the complaint relates to his ongoing treatment which precludes the obtaining of a certification of permanency for purposes of the verbal threshold, N.J.S.A. 39:6A-8(a), and that defendants did not acknowledge in the trial court that he did not have to satisfy the threshold. Before us defendants (and co-defendants Ganchev and Binder Machinery) acknowledged that no threshold is involved because both the defendants' limousine and co-defendants' utility truck are "commercial vehicles," and not "automobiles" as defined in N.J.S.A. 39:6A-2.
Plaintiff also insists that defendants may not preserve the evidence without the order, and that he may not be able to develop discovery about the extent of his damages within the normal period of discovery. He argues:
If plaintiffs were to prematurely institute suit, their case would be dismissed. See N.J.S.A. 39:6A-8(a). Furthermore, this is a catastrophic injury case which will include claims for economic and vocational losses. Since this is an automobile accident, pursuant to Rule 4:24-1(a), it will receive a Track II designation and be limited to three hundred (300) days of discovery with a possible sixty (60) day consensual extension pursuant to rule 4:24-1(c).
Should suit be prematurely filed (while plaintiff is still under active medical treatment) it will be impossible to get plaintiff's medical reports, vocational expert report and economist expert report done in compliance with Rule 4:24-1(a) and (c). Plaintiff will be under active medical treatment to the end of 2007, if not longer.
Once plaintiff concludes treatment, plaintiffs' attorney will have to get narrative medical reports, set up, supply to and receive a vocation expert report and then set up, supply to and receive an economist report. It will be impossible to do all of this within the time allotted by Rule 4:24-1(a) and (c).
The discovery rules are not inflexible, and they certainly were not designed to allow Rule 4:11 applications merely because a lawyer fears a discovery end date would not be satisfied if he or she commences an action at an early date. See In re Hall, 147 N.J. 379, 391-92 (1997),*fn4 Johnson v. Grayce Tighe, Inc., 365 N.J. Super. 237, 240 (App. Div. 2003), Patrick E. Higginbotham, 6-27 Moore's Federal Practice - Civil §27.13 (2007) (explaining that "[t]he rule insists on necessity and is not met by convenience or tactical preferences. There must be a true inability to bring any action at the time the petition is presented.")*fn5
However, plaintiffs contend that the defense attorney brought the restraint upon himself by being "very coy," accepting a transmission "of the digital video recording device on his office computer," prohibiting examination of the "demolished limousine," and giving ...