Key Discovery Rules For Matrimonial Attorneys

There are a multitude of oft-ignored discovery rules in the practice of matrimonial law that should be committed to memory.  Two in particular can affect the efficiency with which discovery proceeds, as well as the ultimate outcome of a case.

Subpoena for Taking Depositions:

Where an attorney seeks to compel the oral deposition of a third party via subpoena, R. 4:14-7 must be adhered to.  Under this rule, specifically subparagraph (b)(1), a resident of New Jersey subpoeaned for the taking of a deposition may only be required to attend an oral examination in the county of New Jersey in which he/she resides, is employed, or transacts business, or at a location in New Jersey that is within twenty (20) miles from the witness’ residence or place of business.  The only other option for a location to conduct the deposition is at a place “fixed by court order.”

Dismissal of Pleadings for Failure to Make Discovery:

Another key rule is R. 4:23-5, specifically subparagraphs (a)(1) and (a)(2), which address the dismissal of pleadings for failure to comply with discovery demands.  Under R. 4:23-5(a)(1), a party may file an application with the Court to have the other side’s pleadings dismissed for their failure to comply with discovery where no “timely motion for an extension” has been made.

The motion to dismiss pleadings must be supported by an affidavit, most often an Attorney Certification, “reciting the facts of the delinquent party’s default” and stating that the moving party is not in default.

If successful, a motion under R. 4:23-5(a)(1) will result in the dismissal of the adversary’s pleadings without prejudice.  A second application can subsequently be filed seeking to dismiss the adversary’s pleadings with prejudice pursuant to R. 4:23-5(a)(2).

by Rob Siegel, Esq.