Preview
CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 1 of 5 Trans ID: LCV20233234008
ARCHER & GREINER
A Professional Corporation
1025 Laurel Oak Road
Voorhees, NJ 08043
(856) 795-2121
Attorneys for Defendants
BY: DOUGLAS DIAZ, ESQUIRE (#017121999)
MEGHAN N. O’BRIEN, ESQUIRE (#322612020)
SUPERIOR COURT OF NEW JERSEY
LISA HATCHER LAW DIVISION
CAMDEN COUNTY
Plaintiff,
Civil Action
v.
Docket No. CAM- L-001337-22
TOWNSHIP OF GLOUCESTER, DAVID
HARKINS, AND JOHN AND JANE DOES
1-10, individually, jointly, severally or in the
alternative, DEFENDANTS’ REPLY BRIEF IN
SUPPORT OF THEIR MOTION TO
Defendants. COMPEL PLAINTIFF’S DEPOSITION
AND IN OPPOSITION TO PLAINTIFF’S
CROSS-MOTION TO STRIKE ANSWER
1. Plaintiff Ignores Rule 4-10:4 in Her Opposition Which Provides that She is Not
Allowed to Dictate the Timing of Discovery and Cannot Refuse to be Deposed,
Which She Did When Her Counsel Unequivocally Stated that Until She Deemed
Paper Discovery Complete, “We Will Not be Producing Plaintiff for her Deposition.”
Conspicuously absent from Plaintiff’s opposition to Defendants’ motion to compel her
deposition is any response to Defendants’ argument that Rule 4-10:4 does not permit her to refuse
to appear for her deposition until she deems written discovery complete. Plaintiff instead attempts
an about face and claims that it is “not the case” that she is “refusing to appear for deposition.”
(See Certification of Jacqueline M. Vigilante, Esq. (“Vigilante Cert.”) at ¶14). This is false
because Plaintiff’s counsel expressly advised that “until such time as paper discovery is complete,
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we will not be producing Plaintiff for her deposition.” (See Exhibit B to Diaz Cert. filed with
Defendants’ Motion)(emphasis added). This violates Rule 4-10:4, which Plaintiff ignores.
Plaintiff also does no more than state in conclusory fashion that “[i]t is prejudicial to
Plaintiff and unfair” to be deposed when Defendants allegedly “refuse to complete their written
discovery and refuse to commit to depositions.” (See Vigilante Cert. at ¶ 15). There is no showing
of how it is allegedly prejudicial as an initial matter. Again, the mere fact that Plaintiff is seeking
discovery from Defendants does not preclude Defendants from taking Plaintiff’s deposition. This
is expressly noted in the Court Rules. Moreover, and as shown below in section 3(b), Defendants
have not refused to complete written discovery. Nor have they refused to commit to depositions.
Plaintiff also incorrectly states that “no effort was made by Mr. Diaz or his associate to
coordinate the scheduling of Plaintiff’s deposition.” (Id. at ¶10). As Defendants set forth in their
Motion, at the time the deposition notice was sent to Plaintiff’s counsel, Defendants expressly
stated “if that date does not work for you or Plaintiff, please let us know some other dates this
month or early November that Plaintiff is available to appear.” (See Exhibit A attached to Diaz
Cert.)(emphasis added). Plaintiff failed to provide any other dates. She instead responded by
expressing her refusal to appear until she deemed written discovery complete. Only after
Defendants filed their motion to compel Plaintiff’s deposition did Plaintiff finally provide dates.
2. Rule 1:6-2(c) Does Not Require a Movant Seeking to Compel a Deposition to
Certify to Compliance with Their Own Discovery and Defendants are Otherwise in
Compliance with Their Discovery Obligations.
Plaintiff argues that Defendants’ motion should be denied for not certifying under Rule
1:6-2(c) that they are not in default of any discovery obligations. (See Vigilante Cert. at ¶¶7-8).
However, Rule 1:6-2(c) does not require a party to certify that they are not in default1.
1
Rule 1:6-2(c) instead requires the meet and confer certification discussed in detail below in Section 3(a).
Defendants did comply with this requirement by advising Plaintiff’s counsel by letter that Plaintiff’s default has
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Moreover, a party must only certify that they are not in default of any discovery obligations if
they are making a motion to dismiss under Rule 4:23-5(a)(1) for failure to comply with “a
demand for discovery pursuant to R. 4:17, R. 4:18, or R. 4:19,” which Rules refer to
interrogatories, document requests, and physical and mental examinations respectively. R. 4:23-
5(a)(1). Here, Defendants are not seeking to dismiss Plaintiff’s complaint, and their motion
otherwise does not involve interrogatories, document requests, or physical or mental
examinations. Rather, it is a motion to compel a deposition not falling under R. 4:23-5(a)(1).
Nevertheless, Defendants are in compliance with their discovery obligations as noted below.
3. Plaintiff’s Cross-Motion to Strike Defendants’ Answer Should be Denied.
a. Plaintiff Has Again Failed to Comply with Rule 1:6-2(c).
For a second time, Plaintiff again brings a discovery motion regarding document requests
alleging deficiencies without complying with Rule 1:6-2(c). Pursuant to Rule 1:6-2(c), a
discovery motion:
shall be listed for disposition only if accompanied by a certification
stating that the attorney for the moving party has either (1)
personally conferred orally or has made a specifically described
good faith attempt to confer orally with the attorney for the opposing
party in order to resolve the issues raised by the motion by
agreement or consent order and that such effort at resolution has
been unsuccessful, or (2) advised the attorney for the opposing party
by letter, after the default has occurred, that continued non-
compliance with a discovery obligation will result in an appropriate
motion being made without further attempt to resolve the matter.
R. 1:6-2(c)(emphasis added). Here, Plaintiff’s certification again does not include any of this
language from Rule 1:6-2(c). Indeed, there is no Rule 1:6-2(c) certification. Instead, Plaintiff
occurred and continued noncompliance would result in an appropriate motion being made without further attempt to
resolve the matter. (See Diaz Cert. accompanying Defendants’ Motion to Compel at ¶16; See also Exhibit C to Diaz
Cert.).
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cites to letters she sent, specifically Exhibit G and Exhibit D to the Vigilante Cert., claiming
“these notices constitute the undersigned’s attempts to confer with [Defendants’ counsel] in
compliance with Rule 1:6-2(c).” (See Vigilante Cert. at ¶ 20). Plaintiff notably fails to mention
these two letters were sent the day of, and the day prior, to her filing motions to strike
Defendants’ pleading for the alleged discovery deficiencies.
Defendants also responded in detail to Plaintiff’s October 11, 2023 letter on October 20,
2023 and specifically asked Plaintiff to advise if she believed any deficiencies remained. (See
Exhibit H to Vigilante Cert.). On October 24, 2023, Plaintiff sent a letter which asked for
clarification regarding Defendants’ letter and, for the first time, provided some clarity from
Plaintiff on what she was actually looking for by way of additional discovery. (Id. at Exhibit D).
Plaintiff noted in this regard: “I hope this letter provides clarity regarding the basis for Plaintiff’s
belief that Defendants’ discovery responses is deficient.” (Id.) Nowhere in the October 24 letter
is there any of the required language from Rule 1:6-2(c).
Moreover, notwithstanding that Plaintiff just asked on October 24 for clarity from
Defendants regarding their prior letter, and for the first time advised Defendants on October 24
what she was actually seeking in discovery, Plaintiff on the very next day filed her motion.
There was no opportunity for Defendants to even respond to the October 24 letter from Plaintiff.
Beyond the bad faith inherent in such a tactic, Plaintiff has failed to comply with Rule 1:6-2(c),
which is designed to have parties confer with each other before encumbering the Court’s time.
The Appellate Division has also emphasized the mandatory nature of this requirement. See
Salazar v. MKGC + Design, 458 N.J. Super. 551, 559 (App. Div. 2019)(reversing order granting
defendants’ motion to bar plaintiffs’ damages claim for failure to provide discovery where
defendants filed the motion in violation of multiple court rules, including non-adherence to Rule
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1:6-2(c)); see also Martino v. Carteret Comprehensive Medical Care, P.C, 2022 WL 4454482, at
*4 (N.J. Super. Ct. App. Div. Sept. 26, 2022)(holding that emails complaining of discovery
violations did not satisfy the dictates of the Rule 1:6-2(c) where the language from the Rule was
not utilized).2 Thus, Plaintiff’s motion should be denied for failing to comply with the meet and
confer requirement of Rule 1:6-2(c).
b. Defendants Have Otherwise Complied with Their Discovery Obligations and
Have Already Produced Responsive Documents.
Plaintiff vaguely states in her motion to strike that she is at a “stalemate in her efforts to
obtain full and complete discovery responses, and Defendants’ deficiencies remain.” (Vigilante
Cert. at ¶21). However, it was only on October 24, 2023, the day prior to Plaintiff’s motion, that
Plaintiff specifically identified some of the alleged documents she was seeking. (Id. at Exhibit
D). Defendants are searching to see whether they have any information, beyond what they have
already produced, responsive to the alleged deficiencies that Plaintiff has only specifically
identified the day prior to filing to strike Defendants’ Answer.
Defendants have also responded to every alleged deficiency in detail for specific
document requests and interrogatories and have advised Plaintiff that they produced the
responsive documents. (Id. at Exhibit H). Plaintiff acknowledges in her October 24, 2023 letter
that “I have reviewed your response and I think there are issues which require clarification.” (Id.
at Exhibit D). Having just received this letter from Plaintiff seeking clarifications, Defendants
are responding accordingly and should have the opportunity to do so.
ARCHER & GREINER, P.C.
BY: _______________________
/s/ Douglas Diaz
DOUGLAS DIAZ, ESQ.
227964337 v1
2
A true and correct copy of this decision is attached to the Second Certification of Douglas Diaz as Ex. A.
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ARCHER & GREINER
A Professional Corporation
1025 Laurel Oak Road
Voorhees, NJ 08043
(856) 795-2121
Attorneys for Defendants
BY: DOUGLAS DIAZ, ESQUIRE (#017121999)
MEGHAN N. O’BRIEN, ESQUIRE (#322612020)
SUPERIOR COURT OF NEW JERSEY
LISA HATCHER LAW DIVISION
CAMDEN COUNTY
Plaintiff,
Civil Action
v.
Docket No. CAM- L-001337-22
TOWNSHIP OF GLOUCESTER, DAVID
HARKINS, AND JOHN AND JANE DOES
1-10, individually, jointly, severally or in the CERTIFICATION OF DOUGLAS DIAZ,
alternative, ESQ. IN SUPPORT OF DEFENDANTS’
MOTION TO COMPEL AND IN
Defendants. OPPOSITION TO PLAINTIFF’S CROSS-
MOTION TO STRIKE
I, Douglas Diaz, of full age, hereby certify as follows:
1. I am an attorney-at-law in the State of New Jersey and a partner in the law firm of Archer
& Greiner, P.C., counsel for Defendants Township of Gloucester and David Harkins. I am the
attorney primarily responsible for the handling of this matter. I submit this Certification in
support of Defendants’ Motion to Compel Plaintiff’s deposition and in opposition to Plaintiff’s
Cross-Motion to Strike Defendants’ Answer.
2. Attached hereto as “Exhibit A” is a true and correct copy of the court decision Martino
v. Carteret Comprehensive Medical Care, P.C, 2022 WL 4454482, (N.J. Super. Ct. App. Div.
Sept. 26, 2022).
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I hereby certify that the foregoing statements made by me are true. I am aware that if any
of the foregoing statements made by me are willfully false, I am subject to punishment.
/s/ Douglas Diaz, Esq.
By : __________________________
DOUGLAS DIAZ, ESQ.
Date: October 27, 2023
227964428 v1
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EXHIBIT A
CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 4 of 8 Trans ID: LCV20233234008
Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022)
2022 WL 4454482
Opinion
2022 WL 4454482
Only the Westlaw citation is currently available. PER CURIAM
UNPUBLISHED OPINION. CHECK *1 In this discovery dispute arising from an employment
COURT RULES BEFORE CITING. action, defendants Carteret Comprehensive Medical Care,
P.C., d/b/a Monroe Comprehensive Medical Care, P.C.,
Superior Court of New Jersey, Appellate Division.
Joseph Bufano, Jr., Christopher Bufano, and Dr. Micah
Leiberman appeal from a February 4, 2022 order, striking
Thomas “TJ” MARTINO, PT, DPT, and
defendants’ answer without prejudice for failure to provide
Juliana Martino, Plaintiffs-Respondents,
discovery, and a February 24, 2022 order, denying
v.
defendants’ cross-motion for a protective order. We reverse.
CARTERET COMPREHENSIVE MEDICAL CARE,
P.C., d/b/a Monroe Comprehensive Medical Care, P.C., We discern the following facts from the record. Defendants
Joseph Bufano, Jr., both individually and as an Owner, own and operate several chiropractic and physical therapy
Partner, Agent/Servant and/or Employee of Carteret facilities in New Jersey. Plaintiff, a licensed physical
Comprehensive Medical Care, P.C., d/b/a Monroe therapist, was an employee of defendants until December
Comprehensive Medical Care, P.C., Christopher Bufano, 2019, when plaintiff was either fired or resigned.
both individually and as an Owner, Partner, Agent/
Servant and/or Employee of Carteret Comprehensive On July 17, 2020, plaintiff filed his complaint against
defendants alleging violations of New Jersey employment
Medical Care, P.C., d/b/a Monroe Comprehensive
law. On June 10, 2021, plaintiff filed a motion to compel
Medical Care, P.C., and Dr. Micah Leiberman,
responses to notices to produce dated April 8, 2021 and
both individually and as an Owner, Partner, Agent/
April 22, 2021. The subject notices sought: (1) defendants’
Servant and/or Employee of Carteret Comprehensive personnel files; (2) exit interviews of former employees; and
Medical Care, P.C., d/b/a Monroe Comprehensive (3) the insurance policy that may cover any potential recovery.
Medical Care, P.C., Defendants-Appellants.
DOCKET NO. A-2319-21 On January 10, 2022, 1 the judge granted plaintiff's
| June 10, 2021 motion, ordering defendants to respond
Submitted September 14, 2022 to plaintiff's discovery requests within fourteen days, and
| to produce witnesses for deposition. On January 25,
Decided September 26, 2022 2022, defendants objected, claiming confidential information
would be revealed by the document production. Defendants
On appeal from an interlocutory order of the Superior Court indicated that they would amend their response and produce
of New Jersey, Law Division, Middlesex County, Docket No. the documents, provided they were marked as confidential
L-3906-20. pursuant to a confidentiality order. Defendants included a
proposed confidentiality order for plaintiff's consideration.
Attorneys and Law Firms
Instead of responding to the request, on January 26, 2022,
Gordon Rees Scully Mansukhani, LLP, attorneys for
plaintiff filed a notice of motion on short notice to strike
appellants (Michael S. Hanan and Stephanie Imbornone, on
the briefs). defendants’ answer with prejudice. 2 Prior to filing the
motion to strike, plaintiff's counsel sent three emails to
Goldman Davis Krumholz & Dillon PC, attorneys for defense counsel inquiring about the outstanding court-
respondent Thomas “TJ” Martino (Kelly A. Smith and Paula ordered discovery. The first email, sent on January 25, 2022,
M. Dillon, on the brief). at 4:19 p.m., stated, in relevant part:
Before Judges DeAlmeida and Mitterhoff.
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Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022)
2022 WL 4454482
notice was entered on the E-docket indicating that defendants’
cross-motion for a protective order would also be decided on
I am following up on the production February 4, 2022.
of documents. Per the Court Order,
these documents were to be provided On February 4, 2022, the motion judge entered an order
yesterday. Please advise as to their granting plaintiff's motion, stating: “Defendant's Answer is
status. stricken without prejudice for failure to comply with the
Court's January 10, 2022, order.” The order provided:
The second email, sent on January 25, 2022, at 5:29 p.m.,
The motion is GRANTED and deemed
stated:
unopposed, as opposition was not filed
I think you are in violation of the court's order. Further, until 6:49 [p.m.] the evening before the
I do not understand why you would not have provide[d] motion was returnable. The defense
a Confidentiality Order some time ago, if that were the was made aware via a clerk's notice
reason you withheld the production of the documents. posted to the eCo[u]rts case jacket
as of this matter on Monday, January
Do you actually intend on producing anything? If so, how 31, 2022, that plaintiff's motion to
many pages do you intend on producing? strike would be heard on short notice.
As the defense's cross-motion seeks
I am fairly certain the Court will not be happy with your a protective order of discovery which
response. they have already been court ordered
to produce, the cross-motion will be
The third and final email, sent on January 25, 2022, at 5:33 treated as a motion to reconsider that
p.m., stated: order. Moreover, the defense did not
make any formal request for their
cross-motion to be heard on short
*2 After further consideration, please notice, so same will be treated as
provide the responsive documents by its own motion with a return date of
close of business today, with or February 18, 2022.
without the confidentiality order.
By order dated February 24, 2022, the motion judge denied
On January 31, 2022, a clerk's notice was entered on the defendant's cross-motion for a protective order, which it
E-docket, indicating that the court would hear the motion treated as a motion to reconsider the earlier January 10th
to strike defendants’ answer on short notice on February order. The order provided:
4, 2022. The clerk's notice did not set any deadline by
which defendants would be required to submit opposition.
If plaintiff's motion to strike had not been heard on short Movant assumed that the Court would
notice, it would have been returnable on February 18, 2022 conduct an in-camera review of these
and defendant's opposition would have been due on February records and submitted everything
10, 2022. to the Court without leave for
an in-camera review. Under those
On February 3, 2022, defendants filed opposition to plaintiff's circumstances, anything filed and/
motion to strike and a cross-motion for a protective order on or submitted to the Court is open
short notice. The opposition was received by the court at 6:49 to public inspection. Clearly, if the
p.m. that same day. In addition, defendants uploaded over documentation is open to the public,
700 pages of confidential, redacted documents to the court there is no need for a protective order.
for an in-camera review. 3 On February 4, 2022, a clerk's
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Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022)
2022 WL 4454482
Moreover, as was previously indicated forth the well-established two-step process that works as
on the Court's Order dated February a “procedural safeguard” for delinquent parties. Both steps
4, 2022, this motion was considered must be satisfied before a motion to dismiss with prejudice
a reconsideration of the Court's Order can be entered for discovery violations. Thabo v. Z Transp.,
dated January 10, 2022, as Movant 452 N.J. Super. 359, 369-71 (App. Div. 2017). “The main
seeks a protective order concerning objective of the rule is to compel [discovery] rather than
the materials the January 10, 2022
to dismiss the case.” Adedoyin v. Arc of Morris County
Order compelled Movant to produce.
Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999)
Pursuant to R. 4:42-2, no revision of
(quoting Pressler, Current N.J. Court Rules, cmt. 3 on R.
the Court's Order dated January 10,
4:23-5).
2022 is required in the interest of
justice.
Step one is dismissal without prejudice. R. 4:23-5(a)(1).
Thereafter, the delinquent party has sixty days to cure
and move to reinstate the pleading. R. 4:23(a)(2). If it
*3 On April 4, 2022, we granted defendants’ motion for does not, step two allows the non-delinquent party to seek
leave to appeal the February 4th and February 24th orders. dismissal with prejudice. R. 4:23-5(a)(2). These procedural
requirements “must be scrupulously followed and technically
On appeal, defendants raise the following arguments: complied with.” Thabo, 452 N.J. Super. at 369.
POINT I A party seeking relief under Rule 4:23-5(a) must also comply
with Rule 1:6-3(a), which prescribes the time frames for filing
THE TRIAL COURT ERRED BY ENTERING THE
and serving all motion papers. Pursuant to R. 1:6-3(a), a notice
ORDER DATE FEBRUARY 4, 2022.
of motion must be filed and served no later than 16 days
A. Plaintiff Did Not Obtain The Requisite Court Order before the return date “unless otherwise provided by court
For Having A Motion Heard On Short Notice. order,” 4 and any opposition to the motion must be filed and
served no later than 8 days before the return date “unless the
B. Defendants Filed Opposition To Plaintiff's Motion To court relaxes that time.” (emphasis added).
Strike That The Trial Court Failed To Consider.
There is no provision in the Court Rules that provides a
C. On Procedural And Substantive Grounds, [Plaintiff's]
procedure or standard for which to alter the time frames in
Motion To Strike Should Not Have Been Granted.
R. 1:6-3(a) to allow a judge to hear a motion on short notice.
D. The Trial Court Erred By Finding That Defendants In fact, the words “short notice” do not appear anywhere in
Did Not Request That Their Cross-Motion Be Heard On the rules. Although the Rule affords a judge some discretion
Short Notice. to relax the sixteen-day window, in this case there was no
discernable justification to hear plaintiff's motion to strike on
POINT II short notice, and the record does not establish any pressing
need to truncate the briefing schedule set by the court rules.
THE TRIAL COURT ERRED BY ENTERING THE
Moreover, as a matter of fairness, having determined to hear
ORDER DATED FEBRUARY 24, 2022.
plaintiff's application on February 4, 2022, the judge should
have entertained the opposition and cross-motion on short
Having reviewed the record and the applicable Rules of Court,
notice as well.
we conclude that the motion judge's determinations to hear
plaintiff's motion on short notice, disregard the opposition,
*4 In that regard, the judge compounded the problem by
and treat the cross-motion as one for reconsideration were
disregarding the opposition as untimely. Under Rule 1:6-2(a),
each a mistaken exercise of his discretion. We are therefore
a motion will be deemed uncontested unless responsive
constrained to reverse both orders.
papers are timely filed and served in adherence with the
above briefing schedule. In Tyler v. New Jersey Auto. Full
We first address the February 4, 2022 order, striking
Ins. Underwriting Ass'n, however, we cautioned against trial
defendants’ answer without prejudice. Rule 4:23-5 sets
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Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022)
2022 WL 4454482
courts refusing to consider motion papers that were filed late the attorney for the opposing party by
but were in the court's hands prior to the return date, stating: letter, after the default has occurred,
that continued non-compliance with
It is a mistaken exercise of judgment to close the courtroom a discovery obligation will result in
doors to a litigant whose opposition papers are late but are an appropriate motion being made
in the court's hands before the return day for a motion which without further attempt to resolve the
determines the meritorious outcome of a consequential matter.
lawsuit. “Swift justice demands more than just swiftness.”
Late filings of motion papers can be met with a variety of
judicial responses afforded by existing court rules. Among
them are sanctions designed to discourage late filings Here, the three emails sent in the space of less than an hour
without determining the outcome of a case. the day before the motion was filed do not satisfy the Rule,
as plaintiff's counsel did not indicate that defense counsel's
continued non-compliance would “result in an appropriate
228 N.J. Super. 463, 468 (App. Div. 1988) (quoting
motion being made.” There is no mention of any proposed
Henderson v. Bannan, 256 F.2d 363, 390 (6th Cir. 1958)
course of action and no attempt to meet and confer. In that
(Stewart, J., dissenting)).
regard, defense counsel indicated that they would amend their
response and produce the documents requested if plaintiff's
The motion judge's disregard of defendants’ opposition is
counsel would agree to mark the documents confidential
particularly unfair because his decision to hear plaintiff's
pursuant to a confidentiality order. Plaintiff's counsel did not
motion to strike on short notice prevented defendants from
certify that no confidential materials were included in the
being able to file opposition or a cross-motion eight days
demand or why they would otherwise not sign the order.
before the return date, as required by the rule. Further, the
Plaintiff's counsel only certified as to the communications
clerk's notice failed to set a new deadline for defendants to
contained in the January 25, 2022 emails, which were clearly
file opposition or a cross-motion. Given the truncated and
deficient. We find that plaintiff's failure to make a good faith
ambiguous briefing schedule, we find that the trial court's
attempt at resolving the discovery dispute that is at the heart
refusal to consider defendants’ opposition papers is precisely
of his motion to strike further precludes the relief granted by
the type of “injustice” that the general relaxation provision of
the trial court.
R. 1-1:2 seeks to protect against.
*5 With respect to the order dated February 24, 2022,
As a final concern, plaintiff's submission was procedurally
we find the judge erred in treating the cross-motion as
deficient and, for that reason alone, should not have been
a motion for reconsideration of the judge's January 10th
granted. Rule 4:23-5(a)(3) requires the moving party to
order. Defendants do not dispute their obligation to provide
comply with R. 1:6-2(c) before moving to strike, which states:
the documents but seek the court's intervention to protect
confidential information about non-parties. As the motion
judge found, defendants’ posting the disputed documents to
Every motion in a civil case ...
the case file online is highly problematic in that njcourts.gov
involving any aspect of pretrial
is a public domain subject to unfettered inspection by the
discovery ... shall be listed for
public. The appropriate procedure would be to request an
disposition only if accompanied by a
in-camera review and, if permission is granted, defendants
certification stating that the attorney
would submit unredacted copies to the judge's chambers
for the moving party has either (1)
under seal. 5
personally conferred orally or has
made a specifically described good
At the same time, we find the judge was unduly dismissive
faith attempt to confer orally with
of the nonparties’ privacy rights. The court can issue an order
the attorney for the opposing party in
to remove the documents from the case jacket and allow
order to resolve the issues raised by
defendants to follow the appropriate procedure for requesting
the motion by agreement or consent
an in-camera review to determine if in fact the documents
order and that such effort at resolution
contain any confidential information. If so, the judge may
has been unsuccessful, or (2) advised
redact the record or provide that the documents will be
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Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022)
2022 WL 4454482
To the extent that we have not addressed defendants’
produced subject to a confidentiality order. Alternatively,
remaining arguments, we find that they lack sufficient merit
plaintiff may wish, in the interests of expediency, to execute
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
the proposed confidentiality order, or one with revisions. In
any event, the issue whether defendants are entitled to a
Reversed. We do not retain jurisdiction.
protective order needs to be resolved on the merits in order
for the case to progress.
All Citations
Not Reported in Atl. Rptr., 2022 WL 4454482
Footnotes
1 The order is dated January 10, 2022 but defendants claim it was not uploaded to the E-docket or served
until January 11, 2022.
2 The trial court did not strike defendants’ answer with prejudice; it only did so without prejudice.
3 The “most highly sensitive information” in the confidential documents (including social security numbers, other
personal identifiers, passwords, medical information, and unrelated insurance information) was redacted.
4 On January 31, 2022, defendants were notified by way of a clerk's notice, rather than court order, that the
court would hear plaintiff's motion to strike on short notice.
5 We reject defendants’ argument that the judge was required as a matter of law to review the documents.
Defendants’ argument to the contrary relies on two unpublished opinions of this Court which are neither on
point nor controlling.
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
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CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 1 of 1 Trans ID: LCV20233234008
ARCHER & GREINER
A Professional Corporation
1025 Laurel Oak Road
Voorhees, NJ 08043
(856) 795-2121
Attorneys for Defendants
LISA HATCHER SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, CAMDEN COUNTY
v. Civil Action
TOWNSHIP OF GLOUCESTER, DAVID Docket No. CAM- L-001337-22
HARKINS, AND JOHN AND JANE DOES
1-10, individually, jointly, severally or in the
alternative, CERTIFICATE OF SERVICE
Defendants.
I, Douglas Diaz, hereby certify that on October 27, 2023, I caused to be served a true and
correct copy of Defendants’ Reply Brief in Support of their Motion to Compel Plaintiff’s
Deposition and in Opposition to Plaintiff’s Motion to Strike, Certification of Counsel and
accompanying Exhibit, upon the following by ECF only:
THE VIGILANTE LAW FIRM, P.C.
Jacqueline M. Vigilante, Esq.
Christopher J. Ross, Esq.
99 North Main Street
Mullica Hill, NJ 08062
Attorneys for Plaintiff
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
/s/ Douglas Diaz
Douglas Diaz, Esq.
October 27, 2023
227964435 v1
Preview
CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 1 of 5 Trans ID: LCV20233234008 ARCHER & GREINER A Professional Corporation 1025 Laurel Oak Road Voorhees, NJ 08043 (856) 795-2121 Attorneys for Defendants BY: DOUGLAS DIAZ, ESQUIRE (#017121999) MEGHAN N. O’BRIEN, ESQUIRE (#322612020) SUPERIOR COURT OF NEW JERSEY LISA HATCHER LAW DIVISION CAMDEN COUNTY Plaintiff, Civil Action v. Docket No. CAM- L-001337-22 TOWNSHIP OF GLOUCESTER, DAVID HARKINS, AND JOHN AND JANE DOES 1-10, individually, jointly, severally or in the alternative, DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO Defendants. COMPEL PLAINTIFF’S DEPOSITION AND IN OPPOSITION TO PLAINTIFF’S CROSS-MOTION TO STRIKE ANSWER 1. Plaintiff Ignores Rule 4-10:4 in Her Opposition Which Provides that She is Not Allowed to Dictate the Timing of Discovery and Cannot Refuse to be Deposed, Which She Did When Her Counsel Unequivocally Stated that Until She Deemed Paper Discovery Complete, “We Will Not be Producing Plaintiff for her Deposition.” Conspicuously absent from Plaintiff’s opposition to Defendants’ motion to compel her deposition is any response to Defendants’ argument that Rule 4-10:4 does not permit her to refuse to appear for her deposition until she deems written discovery complete. Plaintiff instead attempts an about face and claims that it is “not the case” that she is “refusing to appear for deposition.” (See Certification of Jacqueline M. Vigilante, Esq. (“Vigilante Cert.”) at ¶14). This is false because Plaintiff’s counsel expressly advised that “until such time as paper discovery is complete, 1 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 2 of 5 Trans ID: LCV20233234008 we will not be producing Plaintiff for her deposition.” (See Exhibit B to Diaz Cert. filed with Defendants’ Motion)(emphasis added). This violates Rule 4-10:4, which Plaintiff ignores. Plaintiff also does no more than state in conclusory fashion that “[i]t is prejudicial to Plaintiff and unfair” to be deposed when Defendants allegedly “refuse to complete their written discovery and refuse to commit to depositions.” (See Vigilante Cert. at ¶ 15). There is no showing of how it is allegedly prejudicial as an initial matter. Again, the mere fact that Plaintiff is seeking discovery from Defendants does not preclude Defendants from taking Plaintiff’s deposition. This is expressly noted in the Court Rules. Moreover, and as shown below in section 3(b), Defendants have not refused to complete written discovery. Nor have they refused to commit to depositions. Plaintiff also incorrectly states that “no effort was made by Mr. Diaz or his associate to coordinate the scheduling of Plaintiff’s deposition.” (Id. at ¶10). As Defendants set forth in their Motion, at the time the deposition notice was sent to Plaintiff’s counsel, Defendants expressly stated “if that date does not work for you or Plaintiff, please let us know some other dates this month or early November that Plaintiff is available to appear.” (See Exhibit A attached to Diaz Cert.)(emphasis added). Plaintiff failed to provide any other dates. She instead responded by expressing her refusal to appear until she deemed written discovery complete. Only after Defendants filed their motion to compel Plaintiff’s deposition did Plaintiff finally provide dates. 2. Rule 1:6-2(c) Does Not Require a Movant Seeking to Compel a Deposition to Certify to Compliance with Their Own Discovery and Defendants are Otherwise in Compliance with Their Discovery Obligations. Plaintiff argues that Defendants’ motion should be denied for not certifying under Rule 1:6-2(c) that they are not in default of any discovery obligations. (See Vigilante Cert. at ¶¶7-8). However, Rule 1:6-2(c) does not require a party to certify that they are not in default1. 1 Rule 1:6-2(c) instead requires the meet and confer certification discussed in detail below in Section 3(a). Defendants did comply with this requirement by advising Plaintiff’s counsel by letter that Plaintiff’s default has 2 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 3 of 5 Trans ID: LCV20233234008 Moreover, a party must only certify that they are not in default of any discovery obligations if they are making a motion to dismiss under Rule 4:23-5(a)(1) for failure to comply with “a demand for discovery pursuant to R. 4:17, R. 4:18, or R. 4:19,” which Rules refer to interrogatories, document requests, and physical and mental examinations respectively. R. 4:23- 5(a)(1). Here, Defendants are not seeking to dismiss Plaintiff’s complaint, and their motion otherwise does not involve interrogatories, document requests, or physical or mental examinations. Rather, it is a motion to compel a deposition not falling under R. 4:23-5(a)(1). Nevertheless, Defendants are in compliance with their discovery obligations as noted below. 3. Plaintiff’s Cross-Motion to Strike Defendants’ Answer Should be Denied. a. Plaintiff Has Again Failed to Comply with Rule 1:6-2(c). For a second time, Plaintiff again brings a discovery motion regarding document requests alleging deficiencies without complying with Rule 1:6-2(c). Pursuant to Rule 1:6-2(c), a discovery motion: shall be listed for disposition only if accompanied by a certification stating that the attorney for the moving party has either (1) personally conferred orally or has made a specifically described good faith attempt to confer orally with the attorney for the opposing party in order to resolve the issues raised by the motion by agreement or consent order and that such effort at resolution has been unsuccessful, or (2) advised the attorney for the opposing party by letter, after the default has occurred, that continued non- compliance with a discovery obligation will result in an appropriate motion being made without further attempt to resolve the matter. R. 1:6-2(c)(emphasis added). Here, Plaintiff’s certification again does not include any of this language from Rule 1:6-2(c). Indeed, there is no Rule 1:6-2(c) certification. Instead, Plaintiff occurred and continued noncompliance would result in an appropriate motion being made without further attempt to resolve the matter. (See Diaz Cert. accompanying Defendants’ Motion to Compel at ¶16; See also Exhibit C to Diaz Cert.). 3 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 4 of 5 Trans ID: LCV20233234008 cites to letters she sent, specifically Exhibit G and Exhibit D to the Vigilante Cert., claiming “these notices constitute the undersigned’s attempts to confer with [Defendants’ counsel] in compliance with Rule 1:6-2(c).” (See Vigilante Cert. at ¶ 20). Plaintiff notably fails to mention these two letters were sent the day of, and the day prior, to her filing motions to strike Defendants’ pleading for the alleged discovery deficiencies. Defendants also responded in detail to Plaintiff’s October 11, 2023 letter on October 20, 2023 and specifically asked Plaintiff to advise if she believed any deficiencies remained. (See Exhibit H to Vigilante Cert.). On October 24, 2023, Plaintiff sent a letter which asked for clarification regarding Defendants’ letter and, for the first time, provided some clarity from Plaintiff on what she was actually looking for by way of additional discovery. (Id. at Exhibit D). Plaintiff noted in this regard: “I hope this letter provides clarity regarding the basis for Plaintiff’s belief that Defendants’ discovery responses is deficient.” (Id.) Nowhere in the October 24 letter is there any of the required language from Rule 1:6-2(c). Moreover, notwithstanding that Plaintiff just asked on October 24 for clarity from Defendants regarding their prior letter, and for the first time advised Defendants on October 24 what she was actually seeking in discovery, Plaintiff on the very next day filed her motion. There was no opportunity for Defendants to even respond to the October 24 letter from Plaintiff. Beyond the bad faith inherent in such a tactic, Plaintiff has failed to comply with Rule 1:6-2(c), which is designed to have parties confer with each other before encumbering the Court’s time. The Appellate Division has also emphasized the mandatory nature of this requirement. See Salazar v. MKGC + Design, 458 N.J. Super. 551, 559 (App. Div. 2019)(reversing order granting defendants’ motion to bar plaintiffs’ damages claim for failure to provide discovery where defendants filed the motion in violation of multiple court rules, including non-adherence to Rule 4 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 5 of 5 Trans ID: LCV20233234008 1:6-2(c)); see also Martino v. Carteret Comprehensive Medical Care, P.C, 2022 WL 4454482, at *4 (N.J. Super. Ct. App. Div. Sept. 26, 2022)(holding that emails complaining of discovery violations did not satisfy the dictates of the Rule 1:6-2(c) where the language from the Rule was not utilized).2 Thus, Plaintiff’s motion should be denied for failing to comply with the meet and confer requirement of Rule 1:6-2(c). b. Defendants Have Otherwise Complied with Their Discovery Obligations and Have Already Produced Responsive Documents. Plaintiff vaguely states in her motion to strike that she is at a “stalemate in her efforts to obtain full and complete discovery responses, and Defendants’ deficiencies remain.” (Vigilante Cert. at ¶21). However, it was only on October 24, 2023, the day prior to Plaintiff’s motion, that Plaintiff specifically identified some of the alleged documents she was seeking. (Id. at Exhibit D). Defendants are searching to see whether they have any information, beyond what they have already produced, responsive to the alleged deficiencies that Plaintiff has only specifically identified the day prior to filing to strike Defendants’ Answer. Defendants have also responded to every alleged deficiency in detail for specific document requests and interrogatories and have advised Plaintiff that they produced the responsive documents. (Id. at Exhibit H). Plaintiff acknowledges in her October 24, 2023 letter that “I have reviewed your response and I think there are issues which require clarification.” (Id. at Exhibit D). Having just received this letter from Plaintiff seeking clarifications, Defendants are responding accordingly and should have the opportunity to do so. ARCHER & GREINER, P.C. BY: _______________________ /s/ Douglas Diaz DOUGLAS DIAZ, ESQ. 227964337 v1 2 A true and correct copy of this decision is attached to the Second Certification of Douglas Diaz as Ex. A. 5 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 1 of 8 Trans ID: LCV20233234008 ARCHER & GREINER A Professional Corporation 1025 Laurel Oak Road Voorhees, NJ 08043 (856) 795-2121 Attorneys for Defendants BY: DOUGLAS DIAZ, ESQUIRE (#017121999) MEGHAN N. O’BRIEN, ESQUIRE (#322612020) SUPERIOR COURT OF NEW JERSEY LISA HATCHER LAW DIVISION CAMDEN COUNTY Plaintiff, Civil Action v. Docket No. CAM- L-001337-22 TOWNSHIP OF GLOUCESTER, DAVID HARKINS, AND JOHN AND JANE DOES 1-10, individually, jointly, severally or in the CERTIFICATION OF DOUGLAS DIAZ, alternative, ESQ. IN SUPPORT OF DEFENDANTS’ MOTION TO COMPEL AND IN Defendants. OPPOSITION TO PLAINTIFF’S CROSS- MOTION TO STRIKE I, Douglas Diaz, of full age, hereby certify as follows: 1. I am an attorney-at-law in the State of New Jersey and a partner in the law firm of Archer & Greiner, P.C., counsel for Defendants Township of Gloucester and David Harkins. I am the attorney primarily responsible for the handling of this matter. I submit this Certification in support of Defendants’ Motion to Compel Plaintiff’s deposition and in opposition to Plaintiff’s Cross-Motion to Strike Defendants’ Answer. 2. Attached hereto as “Exhibit A” is a true and correct copy of the court decision Martino v. Carteret Comprehensive Medical Care, P.C, 2022 WL 4454482, (N.J. Super. Ct. App. Div. Sept. 26, 2022). 1 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 2 of 8 Trans ID: LCV20233234008 I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. /s/ Douglas Diaz, Esq. By : __________________________ DOUGLAS DIAZ, ESQ. Date: October 27, 2023 227964428 v1 2 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 3 of 8 Trans ID: LCV20233234008 EXHIBIT A CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 4 of 8 Trans ID: LCV20233234008 Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022) 2022 WL 4454482 Opinion 2022 WL 4454482 Only the Westlaw citation is currently available. PER CURIAM UNPUBLISHED OPINION. CHECK *1 In this discovery dispute arising from an employment COURT RULES BEFORE CITING. action, defendants Carteret Comprehensive Medical Care, P.C., d/b/a Monroe Comprehensive Medical Care, P.C., Superior Court of New Jersey, Appellate Division. Joseph Bufano, Jr., Christopher Bufano, and Dr. Micah Leiberman appeal from a February 4, 2022 order, striking Thomas “TJ” MARTINO, PT, DPT, and defendants’ answer without prejudice for failure to provide Juliana Martino, Plaintiffs-Respondents, discovery, and a February 24, 2022 order, denying v. defendants’ cross-motion for a protective order. We reverse. CARTERET COMPREHENSIVE MEDICAL CARE, P.C., d/b/a Monroe Comprehensive Medical Care, P.C., We discern the following facts from the record. Defendants Joseph Bufano, Jr., both individually and as an Owner, own and operate several chiropractic and physical therapy Partner, Agent/Servant and/or Employee of Carteret facilities in New Jersey. Plaintiff, a licensed physical Comprehensive Medical Care, P.C., d/b/a Monroe therapist, was an employee of defendants until December Comprehensive Medical Care, P.C., Christopher Bufano, 2019, when plaintiff was either fired or resigned. both individually and as an Owner, Partner, Agent/ Servant and/or Employee of Carteret Comprehensive On July 17, 2020, plaintiff filed his complaint against defendants alleging violations of New Jersey employment Medical Care, P.C., d/b/a Monroe Comprehensive law. On June 10, 2021, plaintiff filed a motion to compel Medical Care, P.C., and Dr. Micah Leiberman, responses to notices to produce dated April 8, 2021 and both individually and as an Owner, Partner, Agent/ April 22, 2021. The subject notices sought: (1) defendants’ Servant and/or Employee of Carteret Comprehensive personnel files; (2) exit interviews of former employees; and Medical Care, P.C., d/b/a Monroe Comprehensive (3) the insurance policy that may cover any potential recovery. Medical Care, P.C., Defendants-Appellants. DOCKET NO. A-2319-21 On January 10, 2022, 1 the judge granted plaintiff's | June 10, 2021 motion, ordering defendants to respond Submitted September 14, 2022 to plaintiff's discovery requests within fourteen days, and | to produce witnesses for deposition. On January 25, Decided September 26, 2022 2022, defendants objected, claiming confidential information would be revealed by the document production. Defendants On appeal from an interlocutory order of the Superior Court indicated that they would amend their response and produce of New Jersey, Law Division, Middlesex County, Docket No. the documents, provided they were marked as confidential L-3906-20. pursuant to a confidentiality order. Defendants included a proposed confidentiality order for plaintiff's consideration. Attorneys and Law Firms Instead of responding to the request, on January 26, 2022, Gordon Rees Scully Mansukhani, LLP, attorneys for plaintiff filed a notice of motion on short notice to strike appellants (Michael S. Hanan and Stephanie Imbornone, on the briefs). defendants’ answer with prejudice. 2 Prior to filing the motion to strike, plaintiff's counsel sent three emails to Goldman Davis Krumholz & Dillon PC, attorneys for defense counsel inquiring about the outstanding court- respondent Thomas “TJ” Martino (Kelly A. Smith and Paula ordered discovery. The first email, sent on January 25, 2022, M. Dillon, on the brief). at 4:19 p.m., stated, in relevant part: Before Judges DeAlmeida and Mitterhoff. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 5 of 8 Trans ID: LCV20233234008 Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022) 2022 WL 4454482 notice was entered on the E-docket indicating that defendants’ cross-motion for a protective order would also be decided on I am following up on the production February 4, 2022. of documents. Per the Court Order, these documents were to be provided On February 4, 2022, the motion judge entered an order yesterday. Please advise as to their granting plaintiff's motion, stating: “Defendant's Answer is status. stricken without prejudice for failure to comply with the Court's January 10, 2022, order.” The order provided: The second email, sent on January 25, 2022, at 5:29 p.m., The motion is GRANTED and deemed stated: unopposed, as opposition was not filed I think you are in violation of the court's order. Further, until 6:49 [p.m.] the evening before the I do not understand why you would not have provide[d] motion was returnable. The defense a Confidentiality Order some time ago, if that were the was made aware via a clerk's notice reason you withheld the production of the documents. posted to the eCo[u]rts case jacket as of this matter on Monday, January Do you actually intend on producing anything? If so, how 31, 2022, that plaintiff's motion to many pages do you intend on producing? strike would be heard on short notice. As the defense's cross-motion seeks I am fairly certain the Court will not be happy with your a protective order of discovery which response. they have already been court ordered to produce, the cross-motion will be The third and final email, sent on January 25, 2022, at 5:33 treated as a motion to reconsider that p.m., stated: order. Moreover, the defense did not make any formal request for their cross-motion to be heard on short *2 After further consideration, please notice, so same will be treated as provide the responsive documents by its own motion with a return date of close of business today, with or February 18, 2022. without the confidentiality order. By order dated February 24, 2022, the motion judge denied On January 31, 2022, a clerk's notice was entered on the defendant's cross-motion for a protective order, which it E-docket, indicating that the court would hear the motion treated as a motion to reconsider the earlier January 10th to strike defendants’ answer on short notice on February order. The order provided: 4, 2022. The clerk's notice did not set any deadline by which defendants would be required to submit opposition. If plaintiff's motion to strike had not been heard on short Movant assumed that the Court would notice, it would have been returnable on February 18, 2022 conduct an in-camera review of these and defendant's opposition would have been due on February records and submitted everything 10, 2022. to the Court without leave for an in-camera review. Under those On February 3, 2022, defendants filed opposition to plaintiff's circumstances, anything filed and/ motion to strike and a cross-motion for a protective order on or submitted to the Court is open short notice. The opposition was received by the court at 6:49 to public inspection. Clearly, if the p.m. that same day. In addition, defendants uploaded over documentation is open to the public, 700 pages of confidential, redacted documents to the court there is no need for a protective order. for an in-camera review. 3 On February 4, 2022, a clerk's © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 6 of 8 Trans ID: LCV20233234008 Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022) 2022 WL 4454482 Moreover, as was previously indicated forth the well-established two-step process that works as on the Court's Order dated February a “procedural safeguard” for delinquent parties. Both steps 4, 2022, this motion was considered must be satisfied before a motion to dismiss with prejudice a reconsideration of the Court's Order can be entered for discovery violations. Thabo v. Z Transp., dated January 10, 2022, as Movant 452 N.J. Super. 359, 369-71 (App. Div. 2017). “The main seeks a protective order concerning objective of the rule is to compel [discovery] rather than the materials the January 10, 2022 to dismiss the case.” Adedoyin v. Arc of Morris County Order compelled Movant to produce. Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999) Pursuant to R. 4:42-2, no revision of (quoting Pressler, Current N.J. Court Rules, cmt. 3 on R. the Court's Order dated January 10, 4:23-5). 2022 is required in the interest of justice. Step one is dismissal without prejudice. R. 4:23-5(a)(1). Thereafter, the delinquent party has sixty days to cure and move to reinstate the pleading. R. 4:23(a)(2). If it *3 On April 4, 2022, we granted defendants’ motion for does not, step two allows the non-delinquent party to seek leave to appeal the February 4th and February 24th orders. dismissal with prejudice. R. 4:23-5(a)(2). These procedural requirements “must be scrupulously followed and technically On appeal, defendants raise the following arguments: complied with.” Thabo, 452 N.J. Super. at 369. POINT I A party seeking relief under Rule 4:23-5(a) must also comply with Rule 1:6-3(a), which prescribes the time frames for filing THE TRIAL COURT ERRED BY ENTERING THE and serving all motion papers. Pursuant to R. 1:6-3(a), a notice ORDER DATE FEBRUARY 4, 2022. of motion must be filed and served no later than 16 days A. Plaintiff Did Not Obtain The Requisite Court Order before the return date “unless otherwise provided by court For Having A Motion Heard On Short Notice. order,” 4 and any opposition to the motion must be filed and served no later than 8 days before the return date “unless the B. Defendants Filed Opposition To Plaintiff's Motion To court relaxes that time.” (emphasis added). Strike That The Trial Court Failed To Consider. There is no provision in the Court Rules that provides a C. On Procedural And Substantive Grounds, [Plaintiff's] procedure or standard for which to alter the time frames in Motion To Strike Should Not Have Been Granted. R. 1:6-3(a) to allow a judge to hear a motion on short notice. D. The Trial Court Erred By Finding That Defendants In fact, the words “short notice” do not appear anywhere in Did Not Request That Their Cross-Motion Be Heard On the rules. Although the Rule affords a judge some discretion Short Notice. to relax the sixteen-day window, in this case there was no discernable justification to hear plaintiff's motion to strike on POINT II short notice, and the record does not establish any pressing need to truncate the briefing schedule set by the court rules. THE TRIAL COURT ERRED BY ENTERING THE Moreover, as a matter of fairness, having determined to hear ORDER DATED FEBRUARY 24, 2022. plaintiff's application on February 4, 2022, the judge should have entertained the opposition and cross-motion on short Having reviewed the record and the applicable Rules of Court, notice as well. we conclude that the motion judge's determinations to hear plaintiff's motion on short notice, disregard the opposition, *4 In that regard, the judge compounded the problem by and treat the cross-motion as one for reconsideration were disregarding the opposition as untimely. Under Rule 1:6-2(a), each a mistaken exercise of his discretion. We are therefore a motion will be deemed uncontested unless responsive constrained to reverse both orders. papers are timely filed and served in adherence with the above briefing schedule. In Tyler v. New Jersey Auto. Full We first address the February 4, 2022 order, striking Ins. Underwriting Ass'n, however, we cautioned against trial defendants’ answer without prejudice. Rule 4:23-5 sets © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 7 of 8 Trans ID: LCV20233234008 Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022) 2022 WL 4454482 courts refusing to consider motion papers that were filed late the attorney for the opposing party by but were in the court's hands prior to the return date, stating: letter, after the default has occurred, that continued non-compliance with It is a mistaken exercise of judgment to close the courtroom a discovery obligation will result in doors to a litigant whose opposition papers are late but are an appropriate motion being made in the court's hands before the return day for a motion which without further attempt to resolve the determines the meritorious outcome of a consequential matter. lawsuit. “Swift justice demands more than just swiftness.” Late filings of motion papers can be met with a variety of judicial responses afforded by existing court rules. Among them are sanctions designed to discourage late filings Here, the three emails sent in the space of less than an hour without determining the outcome of a case. the day before the motion was filed do not satisfy the Rule, as plaintiff's counsel did not indicate that defense counsel's continued non-compliance would “result in an appropriate 228 N.J. Super. 463, 468 (App. Div. 1988) (quoting motion being made.” There is no mention of any proposed Henderson v. Bannan, 256 F.2d 363, 390 (6th Cir. 1958) course of action and no attempt to meet and confer. In that (Stewart, J., dissenting)). regard, defense counsel indicated that they would amend their response and produce the documents requested if plaintiff's The motion judge's disregard of defendants’ opposition is counsel would agree to mark the documents confidential particularly unfair because his decision to hear plaintiff's pursuant to a confidentiality order. Plaintiff's counsel did not motion to strike on short notice prevented defendants from certify that no confidential materials were included in the being able to file opposition or a cross-motion eight days demand or why they would otherwise not sign the order. before the return date, as required by the rule. Further, the Plaintiff's counsel only certified as to the communications clerk's notice failed to set a new deadline for defendants to contained in the January 25, 2022 emails, which were clearly file opposition or a cross-motion. Given the truncated and deficient. We find that plaintiff's failure to make a good faith ambiguous briefing schedule, we find that the trial court's attempt at resolving the discovery dispute that is at the heart refusal to consider defendants’ opposition papers is precisely of his motion to strike further precludes the relief granted by the type of “injustice” that the general relaxation provision of the trial court. R. 1-1:2 seeks to protect against. *5 With respect to the order dated February 24, 2022, As a final concern, plaintiff's submission was procedurally we find the judge erred in treating the cross-motion as deficient and, for that reason alone, should not have been a motion for reconsideration of the judge's January 10th granted. Rule 4:23-5(a)(3) requires the moving party to order. Defendants do not dispute their obligation to provide comply with R. 1:6-2(c) before moving to strike, which states: the documents but seek the court's intervention to protect confidential information about non-parties. As the motion judge found, defendants’ posting the disputed documents to Every motion in a civil case ... the case file online is highly problematic in that njcourts.gov involving any aspect of pretrial is a public domain subject to unfettered inspection by the discovery ... shall be listed for public. The appropriate procedure would be to request an disposition only if accompanied by a in-camera review and, if permission is granted, defendants certification stating that the attorney would submit unredacted copies to the judge's chambers for the moving party has either (1) under seal. 5 personally conferred orally or has made a specifically described good At the same time, we find the judge was unduly dismissive faith attempt to confer orally with of the nonparties’ privacy rights. The court can issue an order the attorney for the opposing party in to remove the documents from the case jacket and allow order to resolve the issues raised by defendants to follow the appropriate procedure for requesting the motion by agreement or consent an in-camera review to determine if in fact the documents order and that such effort at resolution contain any confidential information. If so, the judge may has been unsuccessful, or (2) advised redact the record or provide that the documents will be © 2023 Thomson Reuters. No claim to original U.S. Government Works. 4 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 8 of 8 Trans ID: LCV20233234008 Martino v. Carteret Comprehensive Medical Care, P.C., Not Reported in Atl. Rptr. (2022) 2022 WL 4454482 To the extent that we have not addressed defendants’ produced subject to a confidentiality order. Alternatively, remaining arguments, we find that they lack sufficient merit plaintiff may wish, in the interests of expediency, to execute to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). the proposed confidentiality order, or one with revisions. In any event, the issue whether defendants are entitled to a Reversed. We do not retain jurisdiction. protective order needs to be resolved on the merits in order for the case to progress. All Citations Not Reported in Atl. Rptr., 2022 WL 4454482 Footnotes 1 The order is dated January 10, 2022 but defendants claim it was not uploaded to the E-docket or served until January 11, 2022. 2 The trial court did not strike defendants’ answer with prejudice; it only did so without prejudice. 3 The “most highly sensitive information” in the confidential documents (including social security numbers, other personal identifiers, passwords, medical information, and unrelated insurance information) was redacted. 4 On January 31, 2022, defendants were notified by way of a clerk's notice, rather than court order, that the court would hear plaintiff's motion to strike on short notice. 5 We reject defendants’ argument that the judge was required as a matter of law to review the documents. Defendants’ argument to the contrary relies on two unpublished opinions of this Court which are neither on point nor controlling. End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 5 CAM-L-001337-22 10/27/2023 4:53:30 PM Pg 1 of 1 Trans ID: LCV20233234008 ARCHER & GREINER A Professional Corporation 1025 Laurel Oak Road Voorhees, NJ 08043 (856) 795-2121 Attorneys for Defendants LISA HATCHER SUPERIOR COURT OF NEW JERSEY LAW DIVISION Plaintiff, CAMDEN COUNTY v. Civil Action TOWNSHIP OF GLOUCESTER, DAVID Docket No. CAM- L-001337-22 HARKINS, AND JOHN AND JANE DOES 1-10, individually, jointly, severally or in the alternative, CERTIFICATE OF SERVICE Defendants. I, Douglas Diaz, hereby certify that on October 27, 2023, I caused to be served a true and correct copy of Defendants’ Reply Brief in Support of their Motion to Compel Plaintiff’s Deposition and in Opposition to Plaintiff’s Motion to Strike, Certification of Counsel and accompanying Exhibit, upon the following by ECF only: THE VIGILANTE LAW FIRM, P.C. Jacqueline M. Vigilante, Esq. Christopher J. Ross, Esq. 99 North Main Street Mullica Hill, NJ 08062 Attorneys for Plaintiff I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. /s/ Douglas Diaz Douglas Diaz, Esq. October 27, 2023 227964435 v1