Marrero v. Feintuch, 418 N.J. Super. 48 (App. Div. 2011). Numerous cases say that in New Jersey state courts, pretrial discovery in civil cases is very broad. This case reiterates that principle in the context of a legal malpractice claim by a criminal defendant whose robbery conviction was ultimately reversed on appeal. The opinion, by Judge Lihotz, contains several pages of citations about the breadth of discovery and vindicates the defendant attorneys’ demand for discovery.
In McKnight v. Office of Pub. Defender, 197 N.J. 180 (2008), the Supreme Court rejected the idea that a criminal defendant must prove actual innocence before suing his counsel for legal malpractice. Instead, only “some form of exoneration” is required. Id. at 182. In Marrero, however, the plaintiff “placed his innocence at issue to clarify defendants’ alleged breach of duty,” alleging specifically that he was at home and on the telephone at the time of the robbery. The plaintiff contended that he would not have been convicted absent the defendants’ allegedly negligent failure to introduce his telephone records at trial.
The defendant attorneys sought to subpoena for deposition a friend of the plaintiff, Richard Stenzer, who was with the plaintiff on the day of the robbery and might have undercut the plaintiff’s alibi. Stenzer had not testified at the criminal trial. For that reason, and because the Law Division judge believed that the plaintiff’s guilt or innocence was irrelevant, the judge quashed the subpoena. The Appellate Division reversed.
The plaintiff’s guilt or innocence was relevant to whether his attorneys had been negligent, especially since the plaintiff had placed his innocence in issue. Whether Stenzer had testified at the criminal trial was immaterial. Stenzer’s deposition testimony might have shed light on the timeline of events so as to undercut the plaintiff’s alibi. If his testimony tended to show the plaintiff’s guilt, it might also have been relevant to issues of proximate causation of the damages purportedly caused by the attorneys’ alleged negligence. If the defendants offered evidence that the plaintiff were guilty after all, “then Marrero’s detention and incarceration were the expected consequence of his culpable criminal conduct, defeating plaintiff’s claim that defendants’ conduct caused the harm alleged.” For these and other reasons, the court reversed the quashing of the deposition subpoena.