Judge Nugent Reminds Us That Rule 4:23-5’s Requirements Must be “Scrupulously Followed and Technically Complied With”

Salazar v. MKGC + Design, 458 N.J. Super. 551 (App. Div. 2019).  In Thabo v. Z Transp., 452 N.J. Super. 359 (App. Div. 2017), discussed here, the Appellate Division made clear that before a complaint can be dismissed with prejudice for failure to make discovery, the defendant who seeks dismissal must strictly comply with all provisions of Rule 4:23-5.  In this case, Judge Nugent faced a situation that amounted “to the functional equivalent of the ‘ultimate sanction’ even though defendants had not only disregarded their own discovery obligations, but had also disregarded in their entirety the mandatory provisions of the rules authorizing the imposition of sanctions for failing to make discovery.”  Applying the abuse of discretion standard, the panel reversed the dismissal and remanded for further proceedings.

Plaintiffs sued defendants for alleged breach of a home improvement contract and for consumer fraud.  The parties served paper discovery on each other, though defendants did not serve interrogatories on plaintiffs.  Neither side responded to discovery.

Following the discovery end date and a mandatory arbitration that resulted in an award for plaintiffs, defendants rejected the award and demanded a trial de novo.  They also then moved to bar plaintiffs from offering late expert reports.  But the attorney certification filed in support of that motion failed to disclose that defendants had not responded to plaintiffs’ interrogatories or document requests, as required by Rule 4:23-5, and did not explain why defendants waited until after the discovery end date to move to bar plaintiffs from proffering expert reports (Rule 4:24-2(a) requires such motions to be made before the discovery end date).  There was also no evidence that defense counsel had attempted to resolve meet and confer to try to resolve the expert discovery issue without a motion, as required by Rule 1:6-2(c).

Despite those deficiencies, the Law Division granted defendants’ motion.  When the matter came on for trial, the Law Division dismissed plaintiffs’ claims for failure to provide damage proofs, which would have been the expert evidence that the motion judge precluded.  Plaintiffs appealed, and the Appellate Division reversed.

Judge Nugent observed that defendants’ failure to move during the discovery period to bar experts, standing alone, entitled the Law Division to exercise its discretion to deny defendants’ belated motion.  He recognized, though, that good cause shown might have permitted the belated motion.  But defendants did not attempt to show good cause, and the Law Division made no finding of good cause.  On the contrary, Judge Nugent stated that defendants “had ample opportunity during the discovery period to compel plaintiff to provide discovery responses.  Their failure to do so, without explanation, suggests they did not have good cause to wait until after the arbitration to file the motion.”

Judge Nugent then noted the meet and confer requirement of Rule 1:6-2(c) and observed that “defense counsel did not claim that during the discovery period he had made a good faith effort to resolve the matter without resorting to the motion.”  This was not a case that fell within one of the limited exceptions to Rule 1:6-2(c), which includes Law Division cases specially assigned to a particular judge for case management, as well as Chancery cases.

Finally, Judge Nugent turned to Rule 4:23-5, whose provisions, he stated (quoting Thabo), must be “scrupulously followed and technically complied with.”  Defendants violated two different provisions of that Rule.

First, Judge Nugent stated, the Rule requires the party moving for discovery sanctions to certify that that party “is not in default in any discovery obligations owed to the delinquent party.  This requirement safeguards against the unilateral imposition of sanctions upon one party when all parties have disregarded their discovery obligations.  In the case before us, defendants could not provide the required certification because they had disregarded their discovery obligations.”

Second, the Rule permits a party to move to exclude expert testimony of an expert “whose report is not furnished pursuant to [Rule] 4:17-4(a) to the party demanding same.”  Here, however, as Judge Nugent rightly observed, defendants had not served interrogatories, and therefore had not “demanded” any expert report that plaintiffs might have planned to offer.  Thus, defendants had no right to move to bar expert reports.

Rule 4:23-5 must be strictly adhered to if a party seeks the ultimate sanction of dismissal, or takes any of the steps leading to that ultimate end, based on discovery deficiencies.  Absent strict adherence, the courts will readily reverse a dismissal.