Preview
MON-L-002188-22 06/05/2023 Pg 1 of 7 Trans ID: LCV20231711230
RUPRECHT HART RICCIARDULLI & SHERMAN, LLP
Michael R. Ricciardulli, Esq./Attorney ID:002611995
Patricia E. Voorhis, Esq./Attorney ID: 042291992
53 Cardinal Drive, Suite 1
Westfield, NJ 07090
Telephone: 908-232-4800/Fax: 908 232-4801
Attorneys for Defendant, Mark J. Reiner, D.O.
PATRICIA WRENN,
SUPERIOR COURT OF NEW JERSEY
Plaintiffs LAW DIVISION: MONMOUTH COUNTY
DOCKET NO.: L-2188-22
vs.
Civil Action
MARK J. REINER, D.O., INDIVIDUALLY
AND/OR AS AGENT, SERVANT, AND/OR (Medical Malpractice)
EMPLOYEE OF VIRTUA WEST JERSEY
HOSPITAL VOORHEES NJ AND/OR CHERRY O R D E R
HILL ORTHOPEDIC SURGEONS, P.A., ET
AL,
Defendants
This matter, having been opened to the court by Ruprecht,
Hart, Ricciardulli & Sherman, LLP, attorneys for the defendant,
Mark J. Reiner, D.O., for an Order of cross-motion compelling
discovery, and the court having considered the papers, and for
good cause shown:
IT IS on this 5TH day of JUNE , 2023;
ORDERED as follows:
1) Plaintiff is hereby compelled to provide the audio
recording made by the plaintiff within fourteen (14)
days of the entry of said Order.
MON-L-002188-22 06/05/2023 Pg 2 of 7 Trans ID: LCV20231711230
The Court’s submission of a copy of this Order onto e-
Courts will constitute service upon all counsel of record.
This Motion is hereby GRANTED for the reasons set forth in
the attached Rider.
___________________________
HON. KATHLEEN A. SHEEDY, J.S.C.
OPPOSED: _X__YES ___NO
MON-L-002188-22 06/05/2023 Pg 3 of 7 Trans ID: LCV20231711230
Statement of Reasons Under R. 1:6-2(f)
Re: Wrenn Patricia Vs Mark J. Reiner, D.O.
Docket No.: MON-L-2188-22
Motion Type: Motion to Compel Discovery/Cross Motion to Compel Discovery
Return Date: May 12, 2023
___________________________________________________________________________
___
This matter comes before the Court by way of Plaintiff Patricia Wrenn’s Motion to
Compel. Defendant Mark J. Reiner, D.O. filed a Cross Motion compelling discovery. The
Court finds that oral argument is not necessary as this is a routine discovery motion and the
parties fully briefed the issue. The Court does not believe that oral argument would have
assisted the Court in reaching a decision.
Facts
This matter arises out of a medical malpractice action wherein Plaintiff commenced
this action on August 9, 2022, naming Mark J. Reiner, D.O. and others as defendants.
Legal Arguments
Plaintiff’s Arguments in Support of the Motion to Compel
Plaintiff propounded Form C, C3, and Supplemental Interrogatories and a Notice to
Produce upon Defendants in her Complaint, which was filed on 8/9/2022. Defendant,
Defendant, Virtua - West Jersey Health System, Inc., filed an Answer to the Complaint on
10/4/2022.
Defendant, Mark J. Reiner, D.O., filed his Answer to the Complaint on 11/29/2022.
Plaintiff filed a Request to Enter Default against Defendant, Cherry Hill Orthopedic Surgeons,
which was granted on 3/2/2023. A Consent Order was granted to vacate the default and permit
this Defendant to file an Answer.
Plaintiff forwarded her certified answers to Form A, A(1), and Supplemental
Interrogatories, and Notice to Produce with attachments to defense counsel via email on
1/13/2023.
Plaintiff also emailed counsel on 2/2/2023 with an amendment to Plaintiff's discovery
responses and a follow up on Defendants' discovery responses, as Plaintiff's deposition was
scheduled for 2/16/2023. Defendant Reiner's counsel responded on 2/13/2023 and said she was
getting her client's discovery together. Plaintiff's deposition had to be cancelled. Defendant
Riener's counsel at that time also requested copies of Plaintiff's audio recordings. We asked
her to memorialize this request in a formal notice to produce, which we received on 3/2/2023.
We will gladly forward Plaintiff's responses to Defendant Reiner's 2nd Notice to Produce after
we receive Defendants' discovery.
On 3/1/2023, Plaintiff emailed defense counsel a letter requesting their clients'
responses to discovery within the next 14 days to avoid the necessity of motion practice. That
same day, both defense attorneys emailed me, indicating they were working on their client's
responses to Plaintiff's discovery requests and should have them to us soon.
Nonetheless, to date, Plaintiff is not in receipt of any discovery responses from
Defendants, nor have Defendants moved before the Court for a formal extension of time in
MON-L-002188-22 06/05/2023 Pg 4 of 7 Trans ID: LCV20231711230
which to answer pursuant to R. 4:17-4 (b). Plaintiff is not in default of any discovery
obligations.
There is no Trial date, calendar call, or Pre-Trial Conference scheduled in this case to
date. The current Discovery End Date is 12/28/2023.
Based on the foregoing, Plaintiff respectfully requests the Court to enter an Order
compelling Defendants to provide their responses to Plaintiff's discovery requests within two
(2) weeks of said Order's entry, or Plaintiff may then move to strike Defendants' Answers and
defenses, asserting the other parties' failure to comply as per R. 4:23-5 (c).
Defendant’s Cross Motion
An Answer was filed on behalf of Dr. Reiner on November 29, 2022. Plaintiff
forwarded her certified answers to Form A, A(1), supplemental interrogatories and Notice to
Produce via email on January 13, 2023. In plaintiff’s interrogatories and response to Notice to
Produce, plaintiff referenced a recording made of plaintiff’s initial office visit with Dr. Reiner.
The audio records were not served with responses.
Plaintiff’s failure to respond to respond to the failure to be fully responsive to the
interrogatory and Notice to Produce render the plaintiff’s answers incomplete. On February
13, 2023, Defendants requested the recording and were asked to serve a formal Notice to
Produce. On March 2, 2023, Defendants served a formal Notice to Produce #2 requesting the
information previously requested in the initial Notice to Produce and Form A interrogatories.
Only upon seeing plaintiff’s present motion to compel on March 16, 2023 did the
Defendants learn that the plaintiffs would not produce the recording of Dr. Reiner’s initial
appointment with the plaintiff until after we responded to form interrogatories. The recording
would be useful in assisting the doctor to make complete responses to his discovery.
While Dr. Reiner was unaware that the plaintiff was secretly recording him at the office
visit, the recordings are essentially office records, as opposed to “work product.” There are no
“work product” privileges applicable to the plaintiff’s secret recording of Dr. Reiner’s office
visit which would require Dr. Reiner to respond to discovery requests prior to hearing the
relevant office visit recording. See Jenkins v. Rainner, 69 N.J. 50 (1976).
Pursuant to R. 4:10-4 sequence and timing of discovery, there is no rule of priority in
discovery. Thus, plaintiff’s failure to turn over the relevant tape recording of Dr. Reiner has
delayed his ability to prepare complete answers to his Form C and C(3) interrogatories.
Based on the foregoing, Dr. Reiner respectfully requests the Court enter an Order
compelling plaintiff to provide the audio recording made by the plaintiff at her first visit to Dr.
Reiner’s office within seven (7) days of the entry of said Order.
Legal Standard
Compelling Discovery
Rule 4:23-1 provides in part:
A party, upon reasonable notice to other parties and all persons affected thereby, may apply
for an order compelling discovery as follows:
MON-L-002188-22 06/05/2023 Pg 5 of 7 Trans ID: LCV20231711230
(a) Motion. If a deponent fails to answer a question propounded or submitted under R.
4:14 or 4:15, or a corporation or other entity fails to make a designation under R.
4:14-2(c) or 4:15-1, the discovering party may move for an order compelling an
answer or designation in accordance with the request. When taking a deposition on
oral examination, the proponent of the question may complete or adjourn the
examination before applying for an order. If the court denies the motion in whole or
in part, it may make such protective order as it would have been empowered to make
on a motion pursuant to R. 4:10-3.
(b) Evasive or Complete Answer. For the purpose of this subdivision an evasive or
incomplete answer is to be treated as a failure to answer.
(c) Award of Expenses of Motion. If the motion is granted, the court shall, after
opportunity for hearing, require the party or deponent whose conduct
necessitated the motion to pay to the moving party the reasonable expenses
incurred in obtaining the order, including attorney’s fees, unless the court finds
that the opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust.
R. 4:23-1.
Answers to Interrogatories
Rule 4:17-4(a)
Form of Answers; By Whom Answered.
Rule 4:17-4(a) states:
Except as otherwise provided in this rule, interrogatories shall be answered in writing
under oath by the party upon whom served, if an individual, or, if a public or private
corporation, a partnership or association, or governmental agency, by an officer or agent who
shall furnish all information available to the party. If a party is unavailable, the interrogatories
may be answered by an agent or authorized representative, including a liability carrier who is
conducting the defense, whose answers shall bind the party. The party shall furnish all
information available to the party and the party's agents, employees, and attorneys. The person
answering the interrogatories shall designate which of such information is not within the
answerer's personal knowledge and as to that information shall state the name and address of
every person from whom it was received, or, if the source of the information is documentary,
a full description including the location thereof. Each question shall be answered separately,
fully and responsively either in the space following the question or on separate pages. Except
as otherwise provided by paragraph (d) of this rule, if in any interrogatory a copy of a paper is
requested, the copy shall be annexed to the answer. If the interrogatory requests the name of
an expert or treating physician of the answering party or a copy of the expert's or treating
physician's report, the party shall comply with the requirements of paragraph (e) of this rule.
Conclusion
This matter comes before the Court by way of Plaintiff Patricia Wrenn’s Motion to
Compel. Defendant Mark J. Reiner, D.O. filed a Cross Motion compelling discovery.
MON-L-002188-22 06/05/2023 Pg 6 of 7 Trans ID: LCV20231711230
The Court has considered the submissions made in support of, and opposition to, the
instant motions. Based on the reasons that follow, Plaintiff’s Motion to Compel is hereby
GRANTED .
According to Rule 4:10-2(a), parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery or to the claim or defense of any
other party. R. 4:10-2(a). A party whose discovery request has not been complied with, may
move to compel production of documents pursuant to R. 4:23-5(c) rather than immediately
move for dismissal of the party’s pleadings under R. 4:23-5(a)(1). The party making such a
discovery motion must make a good faith effort to acquire the discovery as required by R. 1:6-
2(c).
Rule 4:17-4(a) states, “Except as otherwise provided in this rule, interrogatories shall
be answered in writing under oath by the party upon whom served, if an individual, or, if a
public or private corporation, a partnership or association, or governmental agency, by an
officer or agent who shall furnish all information available to the party.” R. 4:17-4(a).
If a demand for discovery pursuant to R. 4:17, R. 4:18-1, or R. 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, except as otherwise provided by paragraph (c) of this rule, move, on
notice, for an order dismissing or suppressing the pleading of the delinquent party. The
Plaintiff here chose to seek a less harsh penalty and sought to compel answers to written
discovery.
Plaintiff’s motion is granted. The Court will compel defendant to respond to plaintiff’s
interrogatories and request for production of documents within twenty-one (21) days from the
date of this order.
For the foregoing reasons, Plaintiff’s Motion to Compel is hereby GRANTED
Additionally, based on the reasons that follow, Defendants Motion to Compel is
hereby GRANTED.
In New Jersey, it is “well-established principle that requests for discovery are to be
liberally construed and accorded the broadest possible latitude to ensure that the ultimate
outcome of litigation will depend on the merits in light of the available facts.” Piniero v. Div.
of State Police, 404 N.J. Super. 194, 204 (App. Div. 2008). Relevancy is not only an issue of
admissibility at trial, but includes an inquiry into whether a discovery request is reasonably
calculated to lead to admissible evidence. Pfenninger v. Hunterdon Cent. Reg'l High Sch.,
167 N.J. 230, 237 (2001). Rule 4:10-2(a)’s definition of relevancy “is congruent with
relevancy pursuant to N.J.R.E. 401, namely, a tendency in reason to prove or disprove any
fact of consequence to the determination of the action.” R.L. v. Voytac, 402 N.J. Super. 392,
408 (App.Div.2008) (citing Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 535 (1997)).
MON-L-002188-22 06/05/2023 Pg 7 of 7 Trans ID: LCV20231711230
Thus relevancy, among other things, may limit the scope of the discovery process. See
Piniero, supra, 404 N.J. Super. at 204.
A party whose discovery request has not been complied with, may move to compel
production of documents pursuant to R. 4:23-5(c) rather than immediately move for
dismissal of the party’s pleadings under R. 4:23-5(a)(1). R. 4:23-5(c) provides that:
Prior to moving to dismiss pursuant to subparagraph (a)(1) of this rule, a party may
move for an order compelling discovery demanded pursuant to R. 4:14, R. 4:18-1 or R. 4:19.
An order granting a motion to compel shall specify the date by which compliance is required
A party making such a discovery motion must make a good faith effort to acquire the
discovery as required by R. 1:6-2(c). Once this step has been taken, however, a party may
proceed to have the motion heard on the merits. With regard to claims of privilege, the party
asserting privilege bears the burden to prove it applies to any given communication. State v.
Blacknall, 335 N.J. Super. 52, 56 (Law Div. 2000).
Here, the Court is satisfied that defendant has complied with the above rules and
makes this motion in good faith. Accordingly, defendant’s motion is granted. Plaintiff has
failed to provide the requested discovery. Plaintiff has the burden of proof and the Court will
require the Plaintiff to provide the audio recording prior to the production of defendant’s
answers to interrogatories and demand for production. Plaintiff must provide the defendant
with the audio recording within fourteen (14) days from the date of this order.
For the foregoing reasons, Defendants Motion to Compel is hereby GRANTED.
Preview
MON-L-002188-22 06/05/2023 Pg 1 of 7 Trans ID: LCV20231711230 RUPRECHT HART RICCIARDULLI & SHERMAN, LLP Michael R. Ricciardulli, Esq./Attorney ID:002611995 Patricia E. Voorhis, Esq./Attorney ID: 042291992 53 Cardinal Drive, Suite 1 Westfield, NJ 07090 Telephone: 908-232-4800/Fax: 908 232-4801 Attorneys for Defendant, Mark J. Reiner, D.O. PATRICIA WRENN, SUPERIOR COURT OF NEW JERSEY Plaintiffs LAW DIVISION: MONMOUTH COUNTY DOCKET NO.: L-2188-22 vs. Civil Action MARK J. REINER, D.O., INDIVIDUALLY AND/OR AS AGENT, SERVANT, AND/OR (Medical Malpractice) EMPLOYEE OF VIRTUA WEST JERSEY HOSPITAL VOORHEES NJ AND/OR CHERRY O R D E R HILL ORTHOPEDIC SURGEONS, P.A., ET AL, Defendants This matter, having been opened to the court by Ruprecht, Hart, Ricciardulli & Sherman, LLP, attorneys for the defendant, Mark J. Reiner, D.O., for an Order of cross-motion compelling discovery, and the court having considered the papers, and for good cause shown: IT IS on this 5TH day of JUNE , 2023; ORDERED as follows: 1) Plaintiff is hereby compelled to provide the audio recording made by the plaintiff within fourteen (14) days of the entry of said Order. MON-L-002188-22 06/05/2023 Pg 2 of 7 Trans ID: LCV20231711230 The Court’s submission of a copy of this Order onto e- Courts will constitute service upon all counsel of record. This Motion is hereby GRANTED for the reasons set forth in the attached Rider. ___________________________ HON. KATHLEEN A. SHEEDY, J.S.C. OPPOSED: _X__YES ___NO MON-L-002188-22 06/05/2023 Pg 3 of 7 Trans ID: LCV20231711230 Statement of Reasons Under R. 1:6-2(f) Re: Wrenn Patricia Vs Mark J. Reiner, D.O. Docket No.: MON-L-2188-22 Motion Type: Motion to Compel Discovery/Cross Motion to Compel Discovery Return Date: May 12, 2023 ___________________________________________________________________________ ___ This matter comes before the Court by way of Plaintiff Patricia Wrenn’s Motion to Compel. Defendant Mark J. Reiner, D.O. filed a Cross Motion compelling discovery. The Court finds that oral argument is not necessary as this is a routine discovery motion and the parties fully briefed the issue. The Court does not believe that oral argument would have assisted the Court in reaching a decision. Facts This matter arises out of a medical malpractice action wherein Plaintiff commenced this action on August 9, 2022, naming Mark J. Reiner, D.O. and others as defendants. Legal Arguments Plaintiff’s Arguments in Support of the Motion to Compel Plaintiff propounded Form C, C3, and Supplemental Interrogatories and a Notice to Produce upon Defendants in her Complaint, which was filed on 8/9/2022. Defendant, Defendant, Virtua - West Jersey Health System, Inc., filed an Answer to the Complaint on 10/4/2022. Defendant, Mark J. Reiner, D.O., filed his Answer to the Complaint on 11/29/2022. Plaintiff filed a Request to Enter Default against Defendant, Cherry Hill Orthopedic Surgeons, which was granted on 3/2/2023. A Consent Order was granted to vacate the default and permit this Defendant to file an Answer. Plaintiff forwarded her certified answers to Form A, A(1), and Supplemental Interrogatories, and Notice to Produce with attachments to defense counsel via email on 1/13/2023. Plaintiff also emailed counsel on 2/2/2023 with an amendment to Plaintiff's discovery responses and a follow up on Defendants' discovery responses, as Plaintiff's deposition was scheduled for 2/16/2023. Defendant Reiner's counsel responded on 2/13/2023 and said she was getting her client's discovery together. Plaintiff's deposition had to be cancelled. Defendant Riener's counsel at that time also requested copies of Plaintiff's audio recordings. We asked her to memorialize this request in a formal notice to produce, which we received on 3/2/2023. We will gladly forward Plaintiff's responses to Defendant Reiner's 2nd Notice to Produce after we receive Defendants' discovery. On 3/1/2023, Plaintiff emailed defense counsel a letter requesting their clients' responses to discovery within the next 14 days to avoid the necessity of motion practice. That same day, both defense attorneys emailed me, indicating they were working on their client's responses to Plaintiff's discovery requests and should have them to us soon. Nonetheless, to date, Plaintiff is not in receipt of any discovery responses from Defendants, nor have Defendants moved before the Court for a formal extension of time in MON-L-002188-22 06/05/2023 Pg 4 of 7 Trans ID: LCV20231711230 which to answer pursuant to R. 4:17-4 (b). Plaintiff is not in default of any discovery obligations. There is no Trial date, calendar call, or Pre-Trial Conference scheduled in this case to date. The current Discovery End Date is 12/28/2023. Based on the foregoing, Plaintiff respectfully requests the Court to enter an Order compelling Defendants to provide their responses to Plaintiff's discovery requests within two (2) weeks of said Order's entry, or Plaintiff may then move to strike Defendants' Answers and defenses, asserting the other parties' failure to comply as per R. 4:23-5 (c). Defendant’s Cross Motion An Answer was filed on behalf of Dr. Reiner on November 29, 2022. Plaintiff forwarded her certified answers to Form A, A(1), supplemental interrogatories and Notice to Produce via email on January 13, 2023. In plaintiff’s interrogatories and response to Notice to Produce, plaintiff referenced a recording made of plaintiff’s initial office visit with Dr. Reiner. The audio records were not served with responses. Plaintiff’s failure to respond to respond to the failure to be fully responsive to the interrogatory and Notice to Produce render the plaintiff’s answers incomplete. On February 13, 2023, Defendants requested the recording and were asked to serve a formal Notice to Produce. On March 2, 2023, Defendants served a formal Notice to Produce #2 requesting the information previously requested in the initial Notice to Produce and Form A interrogatories. Only upon seeing plaintiff’s present motion to compel on March 16, 2023 did the Defendants learn that the plaintiffs would not produce the recording of Dr. Reiner’s initial appointment with the plaintiff until after we responded to form interrogatories. The recording would be useful in assisting the doctor to make complete responses to his discovery. While Dr. Reiner was unaware that the plaintiff was secretly recording him at the office visit, the recordings are essentially office records, as opposed to “work product.” There are no “work product” privileges applicable to the plaintiff’s secret recording of Dr. Reiner’s office visit which would require Dr. Reiner to respond to discovery requests prior to hearing the relevant office visit recording. See Jenkins v. Rainner, 69 N.J. 50 (1976). Pursuant to R. 4:10-4 sequence and timing of discovery, there is no rule of priority in discovery. Thus, plaintiff’s failure to turn over the relevant tape recording of Dr. Reiner has delayed his ability to prepare complete answers to his Form C and C(3) interrogatories. Based on the foregoing, Dr. Reiner respectfully requests the Court enter an Order compelling plaintiff to provide the audio recording made by the plaintiff at her first visit to Dr. Reiner’s office within seven (7) days of the entry of said Order. Legal Standard Compelling Discovery Rule 4:23-1 provides in part: A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows: MON-L-002188-22 06/05/2023 Pg 5 of 7 Trans ID: LCV20231711230 (a) Motion. If a deponent fails to answer a question propounded or submitted under R. 4:14 or 4:15, or a corporation or other entity fails to make a designation under R. 4:14-2(c) or 4:15-1, the discovering party may move for an order compelling an answer or designation in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion pursuant to R. 4:10-3. (b) Evasive or Complete Answer. For the purpose of this subdivision an evasive or incomplete answer is to be treated as a failure to answer. (c) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. R. 4:23-1. Answers to Interrogatories Rule 4:17-4(a) Form of Answers; By Whom Answered. Rule 4:17-4(a) states: Except as otherwise provided in this rule, interrogatories shall be answered in writing under oath by the party upon whom served, if an individual, or, if a public or private corporation, a partnership or association, or governmental agency, by an officer or agent who shall furnish all information available to the party. If a party is unavailable, the interrogatories may be answered by an agent or authorized representative, including a liability carrier who is conducting the defense, whose answers shall bind the party. The party shall furnish all information available to the party and the party's agents, employees, and attorneys. The person answering the interrogatories shall designate which of such information is not within the answerer's personal knowledge and as to that information shall state the name and address of every person from whom it was received, or, if the source of the information is documentary, a full description including the location thereof. Each question shall be answered separately, fully and responsively either in the space following the question or on separate pages. Except as otherwise provided by paragraph (d) of this rule, if in any interrogatory a copy of a paper is requested, the copy shall be annexed to the answer. If the interrogatory requests the name of an expert or treating physician of the answering party or a copy of the expert's or treating physician's report, the party shall comply with the requirements of paragraph (e) of this rule. Conclusion This matter comes before the Court by way of Plaintiff Patricia Wrenn’s Motion to Compel. Defendant Mark J. Reiner, D.O. filed a Cross Motion compelling discovery. MON-L-002188-22 06/05/2023 Pg 6 of 7 Trans ID: LCV20231711230 The Court has considered the submissions made in support of, and opposition to, the instant motions. Based on the reasons that follow, Plaintiff’s Motion to Compel is hereby GRANTED . According to Rule 4:10-2(a), parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. R. 4:10-2(a). A party whose discovery request has not been complied with, may move to compel production of documents pursuant to R. 4:23-5(c) rather than immediately move for dismissal of the party’s pleadings under R. 4:23-5(a)(1). The party making such a discovery motion must make a good faith effort to acquire the discovery as required by R. 1:6- 2(c). Rule 4:17-4(a) states, “Except as otherwise provided in this rule, interrogatories shall be answered in writing under oath by the party upon whom served, if an individual, or, if a public or private corporation, a partnership or association, or governmental agency, by an officer or agent who shall furnish all information available to the party.” R. 4:17-4(a). If a demand for discovery pursuant to R. 4:17, R. 4:18-1, or R. 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, except as otherwise provided by paragraph (c) of this rule, move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. The Plaintiff here chose to seek a less harsh penalty and sought to compel answers to written discovery. Plaintiff’s motion is granted. The Court will compel defendant to respond to plaintiff’s interrogatories and request for production of documents within twenty-one (21) days from the date of this order. For the foregoing reasons, Plaintiff’s Motion to Compel is hereby GRANTED Additionally, based on the reasons that follow, Defendants Motion to Compel is hereby GRANTED. In New Jersey, it is “well-established principle that requests for discovery are to be liberally construed and accorded the broadest possible latitude to ensure that the ultimate outcome of litigation will depend on the merits in light of the available facts.” Piniero v. Div. of State Police, 404 N.J. Super. 194, 204 (App. Div. 2008). Relevancy is not only an issue of admissibility at trial, but includes an inquiry into whether a discovery request is reasonably calculated to lead to admissible evidence. Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230, 237 (2001). Rule 4:10-2(a)’s definition of relevancy “is congruent with relevancy pursuant to N.J.R.E. 401, namely, a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” R.L. v. Voytac, 402 N.J. Super. 392, 408 (App.Div.2008) (citing Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 535 (1997)). MON-L-002188-22 06/05/2023 Pg 7 of 7 Trans ID: LCV20231711230 Thus relevancy, among other things, may limit the scope of the discovery process. See Piniero, supra, 404 N.J. Super. at 204. A party whose discovery request has not been complied with, may move to compel production of documents pursuant to R. 4:23-5(c) rather than immediately move for dismissal of the party’s pleadings under R. 4:23-5(a)(1). R. 4:23-5(c) provides that: Prior to moving to dismiss pursuant to subparagraph (a)(1) of this rule, a party may move for an order compelling discovery demanded pursuant to R. 4:14, R. 4:18-1 or R. 4:19. An order granting a motion to compel shall specify the date by which compliance is required A party making such a discovery motion must make a good faith effort to acquire the discovery as required by R. 1:6-2(c). Once this step has been taken, however, a party may proceed to have the motion heard on the merits. With regard to claims of privilege, the party asserting privilege bears the burden to prove it applies to any given communication. State v. Blacknall, 335 N.J. Super. 52, 56 (Law Div. 2000). Here, the Court is satisfied that defendant has complied with the above rules and makes this motion in good faith. Accordingly, defendant’s motion is granted. Plaintiff has failed to provide the requested discovery. Plaintiff has the burden of proof and the Court will require the Plaintiff to provide the audio recording prior to the production of defendant’s answers to interrogatories and demand for production. Plaintiff must provide the defendant with the audio recording within fourteen (14) days from the date of this order. For the foregoing reasons, Defendants Motion to Compel is hereby GRANTED.