New Jersey Motion to Compel

Introduction

Key Things to Know

1. 1

   A New Jersey discovery motion has a real outside date and it comes from the track. Rule 4:5A-1 assigns every Superior Court civil action by case type to Track I, II, III or IV at the time the complaint and Case Information Statement are filed. Rule 4:24-1(a) gives 150 days on Track I, 300 on Track II and 450 on Tracks III and IV, counting from the date the first answer is filed or from 90 days after the first defendant is served, whichever comes first. Rule 4:24-2(a) requires a motion to compel to be made returnable before that period expires. This is a good-cause door rather than a forfeiture: there is no clause anywhere in these rules saying a party waives the right to compel.

2. 2

   One 60-day consent extension exists and it has to be asked for in time. Rule 4:24-1(c) lets the parties consent to extend discovery for an additional 60 days by stipulation filed with the court, or by a writing signed by one party and copied to all representing that everyone consents, but a consensual extension must be sought prior to the expiration of the discovery period. A longer or contested extension goes by motion to the Civil Presiding Judge or designee on Tracks I to III and to the designated managing judge on Track IV, with copies of all previous extension orders appended or a certification that there are none. After an arbitration or trial date is fixed, no extension may be permitted unless exceptional circumstances are shown.

3. 3

   Rule 4:23-1 is narrower than its reputation. Its opening words let a party apply for an order compelling discovery, but subdivision (a) reaches only a deponent who fails to answer a question propounded or submitted under Rule 4:14 or 4:15, and an entity that fails to make a designation under Rule 4:14-2(c) or 4:15-1. It does not mention interrogatories, document demands or examinations. Subdivision (b) says that for the purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer, and those opening words confine it. Rule 4:23-1(a) adds a sequencing permission for depositions: the proponent of the question may complete or adjourn the examination before applying for an order.

4. 4

   For written discovery that was never complied with, the named remedy is not an order to answer. Rule 4:23-5(a)(1) provides that where a demand under Rule 4:17, 4:18 or 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may move for an order dismissing or suppressing the pleading of the delinquent party, and that unless good cause for other relief is shown the court shall enter an order of dismissal or suppression without prejudice. The motion must be supported by an affidavit reciting the default and stating that the moving party is not itself in default of any discovery it owes. Rule 4:23-5(c) is captioned Motion to Compel and is expressly optional and prior to that step: an order granting it shall specify the date by which compliance is required.

5. 5

   Getting back in after a without-prejudice order is a defined process with a fee attached, and the second stage is harder. The delinquent party's counsel must serve the order on the client by regular and certified mail with the notice prescribed by Appendix II-A, specifically explaining the consequences. A motion to vacate must be supported by an affidavit reciting that the withheld discovery has been fully and responsively provided, and must carry a $100 restoration fee if made within 30 days of the order or $300 thereafter. Sixty days after an unvacated without-prejudice order the movant may seek dismissal or suppression with prejudice, appearance on the return date is mandatory for the delinquent party's attorney or the delinquent self-represented party, and the motion shall be granted unless a motion to vacate has been filed and either the fully responsive discovery has been provided or exceptional circumstances are demonstrated.

6. 6

   The expense award on the compel motion is mandatory and symmetrical, and it names no attorney. Rule 4:23-1(c) provides that if the motion is granted the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied the same mandatory verb runs against the moving party on the mirror exceptions. On a split result the verb drops to may and the court may apportion. Rule 4:18-1(b)(4) and Rule 4:22-1 each import 4:23-1(c) by cross-reference. The dismissal track carries no fee-shift of its own.

7. 7

   Count sixty days for interrogatory answers, and do not plan on a courtesy extension. Rule 4:17-4(b) gives the party served 60 days to serve answers, allows the court to enlarge or shorten that for good cause on a motion made within the 60-day period, and then says plainly that consent orders enlarging the time are prohibited. Document demands run on a different clock under Rule 4:18-1(b)(2): 35 days from service of the request, except that a defendant may respond within 50 days after service of the summons and complaint. Requests for admission run on 30 days under Rule 4:22-1, or 45 days from service of process for a defendant, and lapse into a deemed admission. Four clocks, three devices, and none of them is the familiar 30 days from the request.

New Jersey Requirements for Motion to Compel

• The Track, the Discovery End Date, and a Return Date Inside It

  Rule 4:5A-1 assigns every Superior Court civil action by case type to one of four tracks at the time the complaint and Case Information Statement are filed. Rule 4:24-1(a) sets the period by track at 150, 300 or 450 days, counted from the date the first answer is filed or from 90 days after the first defendant is served, whichever occurs first. Rule 4:24-2(a) then requires motions to compel discovery and to impose or enforce sanctions for failure to provide discovery to be made returnable prior to the expiration of the discovery period, unless the court otherwise permits for good cause shown. It is the return date, not the filing date, that has to fall inside the period. Read the track off your own Case Information Statement rather than inferring it from the case type.

• A Decision Between the Compel Rule and the Dismissal Rule

  Rule 4:23-1(a) reaches only a deponent who fails to answer a question propounded or submitted under Rule 4:14 or 4:15, and an entity that fails to make a designation under Rule 4:14-2(c) or 4:15-1. Written discovery runs through Rule 4:23-5, where (a)(1) provides that on a demand under Rule 4:17, 4:18 or 4:19 that was not complied with, and absent a timely motion for an extension or a protective order, the court shall enter an order of dismissal or suppression without prejudice unless good cause for other relief is shown. Rule 4:23-5(c) is an optional prior motion to compel whose order shall specify the date by which compliance is required. Note the unresolved point in the current text: (a)(1) lists Rule 4:17 and (c) does not, so for unanswered interrogatories the safer route is dismissal or suppression and attorney review is available as an option on that question.

• The Rule 1:6-2(c) Certification, in One of Two Prescribed Forms

  Rule 1:6-2(c) provides that a civil motion involving any aspect of pretrial discovery or the calendar shall be listed for disposition only if accompanied by a certification stating either that the attorney for the moving party personally conferred orally, or made a specifically described good faith attempt to confer orally, with the attorney for the opposing party to resolve the issues by agreement or consent order and that the effort was unsuccessful, or that the attorney advised the opposing attorney by letter, after the default occurred, that continued non-compliance would result in an appropriate motion being made without further attempt to resolve the matter. Those are two documented routes rather than a recital of good faith. Rule 4:23-5(a)(3) adds that affidavits supporting relief under (a)(1) shall include a representation of prior consultation with or notice to opposing counsel or the self-represented party.

• A Proposed Form of Order, the Discovery End Date, and the Scheduled Dates

  Rule 1:6-2(a) requires a motion filed in the Law Division Civil Part to state the discovery end date or a statement that no such date has been assigned, and to be accompanied by a proposed form of order that notes whether the motion was opposed or unopposed. Rule 1:6-2(c) additionally requires the moving papers to set forth the date of any scheduled pretrial conference, arbitration proceeding scheduled under Rule 4:21A, calendar call or trial, or to state that no such dates have been fixed. Rule 4:23-5(a)(3) repeats the form-of-order requirement for every motion made under that rule. These are small items that stop a motion being decided, which matters more in New Jersey than elsewhere because the papers are usually all the court sees.

• Each Disputed Item, With the Uniform Form Question Number Where There Is One

  New Jersey prescribes no separate statement, so the itemization goes in the motion: each request as served, the whole of the response or objection under it, and one sentence on what is missing. In the large class of cases governed by Rule 4:17-1(b)(1), identify the Appendix II form question by number, because Rule 4:17-1(b)(4) provides that except as otherwise provided in subparagraph (b)(3), every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered. That takes the reasonableness of your drafting out of the argument. On document demands, flag any general objection: Rule 4:18-1(b)(4) provides that general objections to the request as a whole are not permitted and shall be disregarded by the court and adverse parties.

• The Certification of Completeness That Should Have Come With the Production

  Rule 4:18-1(c) does not merely require a verification, it prints the wording. The person responding must submit with the response a certification or affidavit stating that they reviewed the document production request, made or caused to be made a good faith search for responsive documents, that to the best of their knowledge and information the production is complete and accurate based on personal knowledge or information provided by others, that they acknowledge a continuing obligation to make a good faith effort to identify additional responsive documents and to serve a supplemental written response promptly, and must then list the identity and source of knowledge of those who provided information. Rule 4:18-1(b)(2) makes that certification a required component of the response. A production served without it is missing something the rule requires, and Rule 4:18-1(b)(3) keeps the supplementation duty running.

• The Restoration Route, Where a Pleading Has Already Been Dismissed

  Rule 4:23-5(a)(1) requires counsel for the delinquent party, on being served with an order of dismissal or suppression without prejudice, to serve a copy on the client by regular and certified mail, return receipt requested, with the notice prescribed by Appendix II-A specifically explaining the consequences. A motion to vacate must be supported by an affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided, and must be accompanied by a $100 restoration fee if made within 30 days of the order or $300 thereafter; beyond 90 days the court may also order sanctions or fees as a condition of restoration. Under Rule 4:23-5(a)(2) the second-stage motion, 60 days after an unvacated order, shall be granted unless a motion to vacate has been filed and either the fully responsive discovery has been provided or exceptional circumstances are demonstrated, and appearance on the return date is mandatory for the delinquent party's attorney or the delinquent self-represented party.

• The Expense Request, Which Attaches to the Compel Motion and Not to the Dismissal Motion

  Rule 4:23-1(c) provides that if the motion is granted the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds the opposition was substantially justified or that other circumstances make an award of expenses unjust. The payer list reaches the party or the deponent and names no attorney. If the motion is denied the same mandatory verb runs against the moving party on the mirror exceptions, and on a split result the court may apportion. Rule 4:18-1(b)(4) and Rule 4:22-1 import this provision by cross-reference. Rule 4:23-5 carries no fee-shift of its own, so going straight to dismissal or suppression does not invoke a mandatory award.