Preview
ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 1 of 44 Trans ID: LCV20231455404
LORRE SYLVAN SMITH, ESQ.
111 NORTHFIELD AVENUE - SUITE 208
WEST ORANGE, NJ 07052
(973) 325-1600
Attorney for Plaintiff
Attorney ID# 103431977
Vanita Perry, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: ESSEX COUNTY
Plaintiff(s) DOCKET NO: ESX-L-2479-19
vs. Civil Action
Cooperman Barnabas Medical
Center, OPPOSITION TO
DEFENDANT’S MOTION FOR
Defendant(s) RECONSIDERATION AND CROSS-
MOTION TO COMPEL DEPOSITIONS
AND DOCUMENTS AND FOR
RECONSIDERATION TO BAR
FURTHER SURVEILLANCE
DISCOVERY
TO: Risa Rich, Esq.
Bressler Amery & Ross
325 Columbia Turnpike - Suite 301
Florham Park, NJ 07932
PLEASE TAKE NOTICE that on Friday, 5/12/2023, at 9:00 AM in the forenoon, or as
soon thereafter as counsel may be heard, the undersigned shall apply to such Judge as may be
sitting hearing motions at the Superior Court of New Jersey, Law Division, Essex County, at the
Courthouse in Newark, New Jersey, for an Order Denying Defendant’s Motion for
Reconsideration and in support of Plaintiff’s Cross-Motion to Compel Production of Documents
and Depositions and for Reconsideration to Bar Further Surveillance Discovery. In support of
the within application, the undersigned shall rely upon the annexed Certification. Please take
further notice that the within Motion is submitted under Rule 1:6-2 and a form of Order, together
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with a checklist is attached. The opposing parties are requested to make any opposition to the
relief sought in writing within eight (8) days prior to the return date.
Pursuant to Rule 1:6-2(d), the movant:
(x) Waives oral argument and consents to disposition on the papers, unless opposition
is filed.
( ) Does not request oral argument at this time.
( ) Requests oral argument, pursuant to Rule 1:6-2(c), for the following reasons:
CERTIFICATION
I certify that the original of the within Notice of Motion has been filed with the County Clerk,
and that true copies have been served on all parties, as required by the Rules of Court.
I certify that:
() I have attempted, unsuccessfully, to reach an amicable resolution of the issues
raised by this Motion.
() I have, in good faith, attempted unsuccessfully to confer with the opposing
party(ies) regarding the issues raised by this Motion.
(X) The issues raised by this Motion are required to be addressed to and decided by
the Court.
Date of Pre-Trial Conference: None
Date of Calendar Call: None
Date of Trial: None
Date: May 4, 2023 ___________________________
Marc S. Smith, Esq.
Attorney for Plaintiff
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STATEMENT OF FACTS
1. Plaintiff, Vanita Perry, sustained serious and permanent injuries requiring ankle
reconstruction surgery and lumbar rhizotomies on September 8, 2017 when large machinery
weighing over 1,000 pounds being operated by Defendant’s employee, Thomas Patten, ran over
Plaintiff’s left leg and knocked her to the ground.
2. On October 28, 2022, Defense counsel emailed Plaintiff’s counsel a letter purporting
to amend discovery advising that Defendant possessed surveillance videos of Plaintiff taken on
9/15/22, 9/25/22, 10/7/22, 10/14/22, 10/15/22, 10/16/2022, and 10/23/22 as well as static
photographs of Plaintiff taken on 10/14/22, 10/15/22, and 10/21/22 taken by Atlantic Security
International Investigations, Inc. Defendant did not name or identify any of the investigators nor
did the amendment include any of the photographs or videos of Plaintiff.
3. While Defendant has asserted Plaintiff has been the subject of surveillance on the
seven different dates above, Plaintiff certifies, per the attached (Exhibit 1), that she has been
under constant surveillance since September, 2022 and continues to be surveilled and harassed
by Defendant’s surveillance investigators.
4. On November 16, 2022, Plaintiff filed a Motion to Bar Defendant’s surveillance
evidence, which Your Honor denied on December 16, 2022.
5. On December 19, 2022, pursuant to the Order, Plaintiff demanded all surveillance
conducted as well as the names and addresses of Defendant’s investigators.
6. On January 9, 2023, Plaintiff was provided with cherry picked surveillance which
consisted of six pictures of Plaintiff taken on September 15, 2022, two pictures of Plaintiff taken
on October 14, 2022, and four pictures of Plaintiff taken on October 21, 2022 as well as three
videos taken of Plaintiff, one on October 14, 2022, one on October 15, 2022, and one on October
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21, 2022. No surveillance evidence was provided for September 25, October 7, October 16, or
October 23, 2022 despite Defendant’s October 28, 2022 amendment to interrogatories stating
surveillance for those dates was conducted.
7. On January 9, 2023, Plaintiff submitted a proposed Order to adjourn the arbitration
that was pending and compel Defendant provide discovery related to its surveillance.
8. Plaintiff’s proposed Order was denied and a case management conference to address
these surveillance issues was scheduled for February 28, 2023.
9. The case management conference was conducted on February 28, 2023 and Your
Honor directed Plaintiff to serve a deposition notice and demand for documents on Defendant to
depose Defendant’s surveillance investigators.
10. On March 3, 2023, Plaintiff served her deposition notice and document demand.
(Exhibit 2).
11. In the deposition notice, Plaintiff demanded:
1. The name, address and contact number of each and every person/investigator,
videographer, and/or photographer who photographed or videoed the plaintiff at any time during the
pendency of this case or was otherwise involved in Plaintiff’s surveillance and the dates and times these
persons surveilled Plaintiff.
2. All unedited raw surveillance videotapes and audiotapes taken of the plaintiff at
any time during the pendency of this case and all time records thereof.
3. All surveillance and still photographs taken of the plaintiff at any time during
the pendency of this case and all time records thereof.
4. All written reports prepared by any person that conducted surveillance of the
plaintiff at any time during the pendency of this case.
5. The entire file including, but not limited to, all notes and logs for each and every
person or entity that conducted surveillance of the plaintiff at any time during the pendency of this case.
6. Copies of all retainer agreements, engagement letters and the like between any
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investigators, videographers, photographers and agency and defense counsel and/or insurance company,
including costs, fees and expenses related to this surveillance and investigatory work and all invoices
and bills for services for each and every person or entity that conducted surveillance of the plaintiff at
any time during the pendency of this case.
7. Copy of all licenses and registration as a private investigator of all persons
employed.
8. Referral sheets assigning this investigation to an investigator(s) or agency.
9. All investigators’, photographers’ or videographers’ emails, correspondence,
memos, or other communications to and from the insurance company or defense counsel or the
insurance company to the investigators, photographers or videographers not subject to “privilege”
exceptions.
10. Copies of all reports, emails, text messages, written memoranda and documents
generated by the investigatory surveillance work
12. On March 15, 2023, Defendant filed a Motion for a Protective Order regarding
surveillance evidence and Plaintiff filed an Opposition and Cross-Motion seeking a protective order
of her own to prohibit further surveillance on March 23, 2023.
13. On April 6, 2023, Your Honor entered an Order and Opinion Denying Defendant’s
motion and Plaintiff’s cross-motion. (Exhibit 3).
14. Plaintiff then resubmitted her deposition notices and document demands on April 14,
2023 and scheduled the depositions for May 2, 2023 and May 9, 2023. (Exhibit 4)
15. On April 26, 2023, however; Defendant filed a Motion for Reconsideration seeking to
prohibit Plaintiff from obtaining the discovery she requested.
16. Defendant has refused to comply with Your Honor’s Order and Plaintiff respectfully
submits its Motion for Reconsideration be denied and Plaintiff’s Cross-Motion to Compel
Production of Documents and Depositions be granted. Plaintiff further submits Defendant should
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be barred from conducting any further surveillance of Plaintiff.
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LEGAL ARGUMENT
I. DEFENDANT’S MOTION FOR RECONSIDERATION IS WITHOUT MERIT
AND SHOULD BE DENIED
Defendant in the instant matter seeks reconsideration of Your Honor’s April 6, 2023
Order denying its motion for a protective order regarding supplying the surveillance evidence
Plaintiff demanded. Defendant’s motion is without merit as Defendant merely rehashes the exact
same arguments and relies on the exact same cases it relied on in its initial motion, which Your
Honor rightfully denied.
Defendant once against misconstrues the holding of Jenkins v. Rainner, 69 N.J. 50
(1976), just as it did in its initial motion, again asserting that Jenkins permits only a limited
inquiry into surveillance evidence, alleging that inquiry is limited to “the time or times the
[video/photographs] were taken, how long the surveillance continued, what plaintiff was doing,
who was present, how many [bytes of data] resulted, who presently has possession of the
[video/photographs], and the like.”
Defendant alleges the Court in Jenkins merely carved out a small exception that requires
the actual surveillance video to be produced and limits discovery as to anything else regarding
surveillance, however; Defendant’s assertions are demonstrably false. The Court in Jenkins did
not place any limit into the inquiry of surveillance evidence whatsoever, it merely held that with
respect to questions during the pendency of a deposition:
From what we have already decided with respect to the films themselves, it
follows the investigator must respond to those questions directed to the time or
times the movies were taken, how long the surveillance continued, what plaintiff
was doing, who was present, how many reels of film resulted, who presently has
possession of the films, and the like. Jenkins v. Rainner, 69 N.J. 50, 59, 350 A.2d
473, 478 (1976)
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The Court made no mention and did not consider the discoverability of items demanded
alongside a deposition notice of a surveillance investigator. It merely held that an investigator
must respond to questions pertaining the time of the surveillance, the length of the surveillance,
and the like during the deposition. There is absolutely nothing in the opinion in Jenkins which
limits discovery pertaining to surveillance.
II. DEFENDANT’S ASSERTION THAT PLAINTIFF HAS NOT DEMONSTRATED
NEED FOR ANYTHING OTHER THAN THE VIDEOS IS LIKEWISE
WITHOUT MERIT
Defendant next asserts that Plaintiff is not entitled to the discovery she has demanded
because she has not demonstrated a substantial need for it. This assertion is likewise without
merit.
It is well settled that relevant documents are presumptively discoverable. “Further, when
materials are relevant to the issues in an action, there is “a presumption of discoverability[.]”
Payton v. N.J. Tpk. Auth., 148 N.J. 524, 539, 691 A.2d 321 (1997) Mernick v. McCutchen, 442
N.J. Super. 196, 200, 121 A.3d 905, 907 (App. Div. 2015)
Plaintiff demanded relevant documents, including written reports prepared by
Defendant’s surveillance investigators, the notes and logs of each person who conducted
surveillance of Plaintiff, invoices, bills, retainer agreements, and engagement letters, referral
sheets, emails, text messages, and correspondence from the insurance company or defense
counsel to the surveillance investigators not subject to any privilege exception.
It is on Defendant to rebut the presumption of discoverability and it is clear that
Defendant cannot. These items sought in these demands are not ‘mental impressions,
conclusions, opinions, or legal theories’ of an attorney or other representative of a party and
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Plaintiff is clearly entitled to discovery of same pursuant to the discovery rules.
III. DEFENDANT HAS FAILED TO PROVIDE A PRIVILEGE LOG IN VIOLATION
OF YOUR HONOR’S 04/06/2023 ORDER AND DEFENDANT SHOULD BE
COMPELLED TO PROVIDE THE DOCUMENTS DEMANDED TO
PLAINTIFF BY MAY 22, 2023
Your Honor’s April 6, 2023 Opinion stated, “if any items are claimed to be privileged,
then a privilege log should be provided. In that way, any challenges to claims of privilege may be
brought before the court for disposition.”
Rather than complying with the Court Order and providing a privilege log, however;
Defendant once again asserted that it is only responsible to provide the videos and there is no
need for a privilege log as all of the discovery Plaintiff demanded is work product and subject to
attorney client privilege.
As illustrated in Plaintiff’s initial opposition to Defendant’s motion, Defendant is not
entitled to render conclusive its own evaluation of the materials in question and decide that they are
privileged and not discoverable. Defendant must turn the documents it asserts are privileged over to
the Court as it is Defendant’s burden to prove these items are protected by any privilege.
“The burden of proving a communication is protected by the attorney-client privilege
rests with “the person ... asserting the privilege.” Hedden v. Kean Univ., 434 N.J. Super. 1, 12
(App. Div. 2013).
In United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 568, 483 A.2d 821, 828 (App.
Div. 1984), the Court held that the party invoking the attorney-client privilege could not render
conclusive its own evaluation of the subject materials and that disclosure to the Court and in
camera review was required. Regarding documents purported to be protected by the attorney-
client privilege, it stated:
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Obviously, this question cannot be fairly resolved without a painstaking review
and inspection of the communications sought to be barred. We note in that regard
that plaintiff cannot invoke the privilege to render conclusive its own evaluation
of the nature and character of the materials in question. Rather, an in camera
inspection by the court is clearly required. United Jersey Bank v. Wolosoff, 196
N.J. Super. 553, 568, 483 A.2d 821, 828 (App. Div. 1984)
Defendant was required to turn over its complete file and its investigative agency’s
complete file, all communications, reports, emails, memos, text messages, and documents to the
Court and all documents it asserts are privileged to the Court pursuant Your Honor’s Order and
Rule 4:10-2(e), which provides:
(1) Information Withheld. When a party withholds information otherwise
discoverable under these rules by claiming that it is privileged or subject to
protection as trial preparation material, the party shall make the claim expressly
and shall describe the nature of the documents, communications, or things not
produced or disclosed in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the applicability of the
privilege or protection.
Defendant, however; has failed to comply with Your Honor’s Order, in violation of Rule
4:23-2. Accordingly, Plaintiff respectfully submits Defendant should be compelled to provide the
documents Plaintiff demanded by May 22, 2023 and that its representatives be compelled to
appear for depositions on June 5, 6, or 7th 2023, subject to modification by Plaintiff upon review
of the records.
Rule 4:23-2 governs failure to comply with an Order. Rule 4:23-2(b) states:
(b) Other Matters. If a party or an officer, director, or managing or authorized
agent of a party or a person designated under R. 4:14-2(c) or 4:15-1 to testify on
behalf of a party fails to obey an order to provide or permit discovery, including
an order made under R. 4:23-1, the court in which the action is pending may make
such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other
designated facts shall be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
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(2) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting the introduction of designated
matters in evidence;
(3) An order striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding or any part
thereof with or without prejudice, or rendering a judgment by default against the
disobedient party;
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as
a contempt of court the failure to obey any orders.
In lieu of any of the foregoing orders or in addition thereto, the court shall require
the party failing to obey the order to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the court finds that the failure was
substantially justified or that other circumstances make an award of expenses
unjust.
Pursuant to Your Honor’s Order, Plaintiff sent new deposition notices on April 14, 2023.
Plaintiff noticed the custodian of records of Atlantic Security International Investigations to
appear for deposition on May 2, 2023 and for the investigators of Atlantic Security to appear on
May 9, 2023. Plaintiff’s notice included a document demand for the following:
1. The name, address and contact number of each and every person/investigator,
videographer, and/or photographer who photographed or videoed the plaintiff at any time during the
pendency of this case or was otherwise involved in Plaintiff’s surveillance and the dates and times these
persons surveilled Plaintiff.
2. All unedited raw surveillance videotapes and audiotapes taken of the plaintiff at
any time during the pendency of this case and all time records thereof.
3. All surveillance and still photographs taken of the plaintiff at any time during
the pendency of this case and all time records thereof.
4. All written reports prepared by any person that conducted surveillance of the
plaintiff at any time during the pendency of this case.
5. The entire file including, but not limited to, all notes and logs for each and every
person or entity that conducted surveillance of the plaintiff at any time during the pendency of this case.
6. Copies of all retainer agreements, engagement letters and the like between any
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investigators, videographers, photographers and agency and defense counsel and/or insurance company,
including costs, fees and expenses related to this surveillance and investigatory work and all invoices
and bills for services for each and every person or entity that conducted surveillance of the plaintiff at
any time during the pendency of this case.
7. Copy of all licenses and registration as a private investigator of all persons
employed.
8. Referral sheets assigning this investigation to an investigator(s) or agency.
9. All investigators’, photographers’ or videographers’ emails, correspondence,
memos, or other communications to and from the insurance company or defense counsel or the
insurance company to the investigators, photographers or videographers not subject to “privilege”
exceptions.
10. Copies of all reports, emails, text messages, written memoranda and documents
generated by the investigatory surveillance work
Defendant, however; did not comply with its discovery obligations and violated Your
Honor’s April 6, 2023 Order. Your Honor was clear in the Order that the items Plaintiff
demanded were discoverable and that if any of the items were claimed to be privileged, a
privilege log should have been provided.
Plaintiff was first notified of Defendant’s surveillance efforts on October 28, 2023.
Plaintiff was not provided with any photographs or videos until January 9, 2023. On February 28,
2023, the parties appeared for a case management conference and Your Honor entered an Order
requiring Plaintiff to send a deposition notice and document demand, which Plaintiff sent on
March 3, 2023. Two months later, Defendant has still refused to provide the discovery Plaintiff is
entitled to and has refused to comply with a Court Order.
Accordingly, as Defendant has failed to comply with a Court Order, Plaintiff respectfully
submits Defendant should be compelled to produce all of the items Plaintiff demanded by May
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22, 2023, in advance of the deposition of Atlantic Security’s investigators, which Plaintiff
respectfully submits Defendant’s representatives should be compelled to appear for on June 5, 6,
or 7, 2023 at a time to be determined by Plaintiff, subject to modification by Plaintiff upon
receipt and review of the records. Plaintiff further submits Defendant should be required to
certify that it made inquiries for all of records Plaintiff demanded in the deposition notice.
IV. DEFENDANT SHOULD BE BARRED FROM CONDUCTING ANY FURTHER
SURVEILLANCE OF PLAINTIFF AS FURTHER SURVEILLANCE WOULD
CAUSE SIGNIFICANT DELAY IN THE RESOLUTION OF THIS MATTER
AND PLAINTIFF SHOULD BE ENTITLED TO INJUNCTIVE RELIEF
Defendant has asserted that it has fully produced its surveillance footage of Plaintiff,
however; Defendant has only provided Plaintiff with surveillance evidence relating to four days,
September 15, October 14, October 15, and October 21, 2022. In Defendant’s October 28, 2022
amendment to interrogatories, it asserted it had pictures and video of Plaintiff on September 25,
October 7, October 16, and October 13, 2022 as well but no surveillance evidence for those dates
was provided.
In addition to the four dates evidence has been withheld for, Plaintiff, asserts that she has
been the subject of continuing surveillance which has caused Plaintiff to suffer from severe
anxiety and mental anguish.
Plaintiff filed a cross-motion for a protective order to prohibit further surveillance, which
Your Honor denied, stating that Plaintiff did not “provide any analysis of how that rule could be
used to support a claim for what on its face appears to be a form of injunctive relief.” The denial
of Plaintiff’s cross-motion was made without prejudice.
Accordingly, Plaintiff respectfully seeks reconsideration of her motion for a protective
order to prohibit further surveillance.
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Rule 4:10-3 governs protective orders. It provides:
On motion by a party or by the person from whom discovery is sought, the court,
for good cause shown or by stipulation of the parties, may make any order that
justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including, but not limited to, one or more
of the following:
(a) That the discovery not be had;(b) That the discovery may be had only on
specified terms and conditions, including a designation of the time or
place;(c) That the discovery may be had only by a method of discovery other than
that selected by the party seeking discovery;(d) That certain matters not be
inquired into, or that the scope of the discovery be limited to certain
matters;(e) That discovery be conducted with no one present except persons
designated by the court;(f) That a deposition after being sealed be opened only by
order of the court;(g) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be disclosed only in
a designated way;(h) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on
such terms and conditions as are just, order that any party or person provide or
permit discovery. The provisions of R. 4:23-1(c) apply to the award of expenses
incurred in relation to the motion.
Defendant’s continued and constant surveillance of Plaintiff serves no purpose other than
to harass, embarrass, and intimidate her and has caused her great mental anguish and Plaintiff
seeks injunctive relief to prohibit further surveillance.
Rule 4:52 governs injunctions. Rule 4:52-2 provides:
During the pendency of an action, either a temporary restraint or an interlocutory
injunction may be applied for either by motion or by order to show cause.
The Courts have outlined a series of factors which must be met in order to grant
injunctive relief:
In determining whether to enter an interlocutory injunction, a judge must find that
the movant has demonstrated a reasonable probability of success on the merits;
that a balancing of the equities and hardships favors injunctive relief; that the
movant has no adequate remedy at law and that the irreparable injury to be
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suffered in the absence of injunctive relief is substantial and imminent; and that
the public interest will not be harmed. Crowe v. De Gioia, 90 N.J. 126, 132–34,
447 A.2d 173 (1982); McKenzie v. Corzine, 396 N.J.Super. 405, 413, 934 A.2d
651 (App.Div.2007); Subcarrier Commcn's, Inc. v. Day, 299 N.J.Super. 634, 638,
691 A.2d 876 (App.Div.1997); J.H. Renarde, Inc. v. Sims, 312 N.J.Super. 195,
206, 711 A.2d 410 (Ch.Div.1998).
Each of these factors must be clearly and convincingly demonstrated. McKenzie,
supra, 396 N.J.Super. at 414, 934 A.2d 651; Subcarrier, supra, 299 N.J.Super. at
639, 691 A.2d 876; American Employers' Ins. Co. v. Elf Atochem N.A., Inc., 280
N.J.Super. 601, 610–11 n. 8, 656 A.2d 58 (App.Div.1995). However, although it
is generally understood that all the Crowe factors must weigh in favor of
injunctive relief, see, e.g., McKenzie, supra, 396 N.J.Super. at 414, 934 A.2d 651;
Sherman v. Sherman, 330 N.J.Super. 638, 642–43, 750 A.2d 229 (Ch.Div.1999),
a court may take a less rigid view than it would after a final hearing when the
interlocutory injunction is merely designed to preserve the status quo. General
Elec. Co. v. Gem Vacuum Stores, Inc., 36 N.J.Super. 234, 236–37, 115 A.2d 626
(App.Div.1955). The issuance of an interlocutory injunction must be squarely
based on an appropriate exercise of sound judicial discretion, N.J. State Bar Ass'n
v. Northern N.J. Mortgage Assocs., 22 N.J. 184, 194, 123 A.2d 498 (1956);
Bancroft & Sons Co. v. Shelley Knitting Mills, Inc., 268 F.2d 569, 573 (3d
Cir.1959), which—when limited to preserving the status quo during the suit's
pendency—may permit the court to place less emphasis on a particular Crowe
factor if another greatly requires the issuance of the remedy. Ibid.
Waste Mgmt. of New Jersey, Inc. v. Union Cnty. Utilities Auth., 399 N.J. Super.
508, 519–20, 945 A.2d 73, 80 (App. Div. 2008)
Each of the factors has been met in the instant matter to favor injunctive relief. Plaintiff
will suffer irreparable harm if surveillance is permitted to continue and she has no adequate
remedy at law. Plaintiff is already suffering from mental anguish and depression as she asserts
Defendant’s investigators are following her wherever she goes. Certainly the public interest will
not be harmed if Defendant is prohibited from conducting further surveillance and the balancing
of equities and hardships clearly favors injunctive relief. Defendant has no need to continue to
monitor Plaintiff while Plaintiff would be subject to great annoyance, embarrassment, and mental
anguish if it is permitted to continue.
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In addition, Defendant should be barred from conducting any further surveillance of
Plaintiff and submitting any other surveillance evidence of Plaintiff other than what it has already
submitted because further surveillance evidence would cause significant delays in the ultimate
resolution of this matter. Arbitration in this matter is scheduled for July 11, 2023 and Your
Honor stated in the April 6, 2023 Opinion that “the parties are to complete discovery in a manner
so as to allow the arbitration to go forward as scheduled.” It would be unlikely that the arbitration
would be able to go forward as scheduled if Defendant is able to continue its surveillance of
Plaintiff or submit surveillance evidence of Plaintiff other than what it has already submitted as
Plaintiff would have to redepose Defendant’s investigators.
Accordingly, Plaintiff respectfully submits her cross-motion to prohibit further
surveillance be granted.
CONCLUSION
For the reasons stated, Plaintiff respectfully submits Defendant’s Motion for
Reconsideration be denied and her Cross-Motion to Compel Production of Documents and
Depositions and for Reconsideration to Prohibit Further Surveillance be granted.
____________________
MARC S. SMITH, ESQ.
Attorney for Plaintiff
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EXHIBIT 1
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EXHIBIT 2
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LORRE SYLVAN SMITH
COUNSELORS AT LAW
SUITE 208
111 NORTHFIELD AVENUE
LORRE SYLVAN SMITH WEST ORANGE, NEW JERSEY 07052 SUITE 208E
NEW JERSEY AND FLORIDA BARS 191 WOODPORT ROAD
SPARTA, NEW JERSEY 07871
MARC S. SMITH
NEW JERSEY BAR ____________
PLEASE REPLY TO WEST ORANGE
973 325-1600
FACSIMILE 973 325-1655
www.lorresylvansmith.com
email: lorre@lorresylvansmith.com
email: marc@lorresylvansmith.com
March 3, 2023
Via Email
Risa Rich, Esq.
Bressler Amery & Ross
325 Columbia Turnpike - Suite 301
Florham Park, NJ 07932
Re: Perry (Vanita) v. St Barnabas
D/A: 9/8/2017
Our File No.: N2546
Docket No.: ESX-L-2479-19
Dear Ms. Rich:
Enclosed please find a deposition notice and document demand for the Custodian of
Records of Atlantic Security International Investigations, Inc. for March 22, 2023 and a deposition
notice for the persons, investigators, and representatives of Atlantic Security International
Investigations, Inc. who conducted surveillance of Plaintiff for April 5, 2023 via Zoom.
Very truly yours,
MARC S. SMITH
MSS/ljs
Enclosure
CC: J.H. Buehrer & Associates
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INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS
MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR
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ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS
ABOVE VIA THE UNITED STATES POSTAL SERVICE. THANK YOU.
ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 22 of 44 Trans ID: LCV20231455404
LORRE SYLVAN SMITH, ESQ.
111 NORTHFIELD AVENUE, SUITE 208
WEST ORANGE, NEW JERSEY 07052
973-325-1600
Attorneys for Plaintiff
Attorney ID#: 013431977
VANITA PERRY, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION : ESSEX COUNTY
Plaintiff, DOCKET NO.: ESX-L-2479-19
vs. Civil Action
SAINT BARNABAS MEDICAL CENTER, NOTICE TO TAKE ORAL DEPOSITIONS
et al.,
Defendant(s).
TO: Risa Rich, Esq.
Bressler Amery Ross PC
325 Columbia Turnpike, Suite 301
PO Box 1980
Morristown, NJ 07962
MADAM:
PLEASE TAKE NOTICE, that in accordance with the Rules of Civil Practice and
Procedure, testimony will be taken by deposition upon oral examination before a person
authorized by the laws of the State of New Jersey to administer oaths on March 22, 2023 at
10:00 o'clock A.M. via Zoom, with respect to all matters relevant to the subject matter involved
in this action, at which time and place you will please produce the following person(s) whose
testimony is to be taken: CUSTODIAN OF RECORDS OF ATLANTIC SECURITY
INTERNATIONAL INVESTIGATIONS, who shall produce at said time and place the
following documents pertaining to the surveillance of Plaintiff, Vanita Perry:
1. The name, address and contact number of each and every person/investigator,
videographer, and/or photographer who photographed or videoed the plaintiff at any time during
the pendency of this case or was otherwise involved in Plaintiff’s surveillance and the dates and
times these persons surveilled Plaintiff.
2. All unedited raw surveillance videotapes and audiotapes taken of the plaintiff at any
time during the pendency of this case and all time records thereof.
ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 23 of 44 Trans ID: LCV20231455404
3. All surveillance and still photographs taken of the plaintiff at any time during the
pendency of this case and all time records thereof.
4. All written reports prepared by any person that conducted surveillance of the
plaintiff at any time during the pendency of this case.
5. The entire file including, but not limited to, all notes and logs for each and every
person or entity that conducted surveillance of the plaintiff at any time during the pendency of this
case.
6. Copies of all retainer agreements, engagement letters and the like between any
investigators, videographers, photographers and agency and defense counsel and/or insurance
company, including costs, fees and expenses related to this surveillance and investigatory work and
all invoices and bills for services for each and every person or entity that conducted surveillance of
the plaintiff at any time during the pendency of this case.
7. Copy of all licenses and registration as a private investigator of all persons
employed.
8. Referral sheets assigning this investigation to an investigator(s) or agency.
9. All investigators’, photographers’ or videographers’ emails, correspondence,
memos, or other communications to and from the insurance company or defense counsel or the
insurance company to the investigators, photographers or videographers not subject to “privilege”
exceptions.
10. Copies of all reports, emails, text messages, written memoranda and documents
generated by the investigatory surveillance work
PLEASE BE ADVISED of the duties imposed by R. 4:142-2(c):
DUTIES IMPOSED BY N.J. RULE 4:14-2(c) Deposition of Organization:
Duty to Prepare: the deponent organization has a duty to “prepare the witness to testify to
matters not only known by the deponent, but those that should be reasonably known by the
designating party”. Witnesses must be prepared to completely, knowledgeably, and unevasively
provide binding answers to questions within the scope of matters specified in the deposition
notice. To permit otherwise, would allow the responding corporation to degrade the depositional
process by conducting, without due diligence inquiry before the deposition rather than a
thorough and vigorous inquiry before the trial.
A deponent’s designated witnesses shall testify as to matters known or reasonably
available to the organization. The testimony elicited at the R. 4:14-2(c) deposition represents the
ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 24 of 44 Trans ID: LCV20231455404
knowledge of the corporation, not of the individual deponents. Therefore, if the deponent’s
designees are not personally knowledgeable about the matters specified in the deposition notice
and for which they have been designated to testify, the organization must prepare them to give
knowledgeable, binding answers; this duty goes beyond those matters in which witnesses had
personal involvement.
It is the responsibility of the corporation to undertake a thorough investigation in
response to the R. 4:14-2(c) deposition notice. While corporate depositions can require
extensive preparation, it is the organization’s duty to so prepare, even if a cumbersome process.
The inconvenience to the corporation is merely the result of the concomitant obligation from the
privilege of being able to use the corporate forum in order to conduct business. Since the New
Jersey R. 4:14-2(c) is modeled after the Federal Rule, the requirements are concurrent.
The corporation’s responsibility is to prepare the witness to testify property. If the R.
4:14-2(c) witness is not knowledgeable about the relevant facts, and the entity has failed to
designate an available, knowledgeable and readily identifiable witness, the appearance is, for all
practical purposes, no appearance at all. If an unprepared witness is produced to testify in
response to Rule notice, the Court can impose sanctions.
“Reasonably available” information includes all documents that a party has a legal right
or authority or practical ability to get, even if they are not in the deponent organization’s physical
possession and even of a non-party to the action has possession of them. Dead or discharged
personnel do not excuse inadequate knowledge by the witness. Nor do voluminous documents
for which review is burdensome. A court may consider evidence withheld despite reasonable
availability as similar to spoliation, which “should be sanctioned accordingly”. Likewise, an
inadequately prepared designated witness will amount to an impermissible refusal to answer a
question and a sanctionable failure to appear.
Dated: March 3, 2023 ___________________________
MARC S. SMITH, ESQ.
Attorney for Plaintiff
cc: J.H. Buehrer & Associates - via fax 732-608-6116
ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 25 of 44 Trans ID: LCV20231455404
LORRE SYLVAN SMITH, ESQ.
111 NORTHFIELD AVENUE, SUITE 208
WEST ORANGE, NEW JERSEY 07052
973-325-1600
Attorneys for Plaintiff
Attorney ID#: 013431977
VANITA PERRY, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION : ESSEX COUNTY
Plaintiff, DOCKET NO.: ESX-L-2479-19
vs. Civil Action
SAINT BARNABAS MEDICAL CENTER, NOTICE TO TAKE ORAL DEPOSITIONS
et al.,
Defendant(s).
TO: Risa Rich, Esq.
Bressler Amery Ross PC
325 Columbia Turnpike, Suite 301
PO Box 1980
Morristown, NJ 07962
MADAM:
PLEASE TAKE NOTICE, that in accordance with the Rules of Civil Practice and
Procedure, testimony will be taken by deposition upon oral examination before a person
authorized by the laws of the State of New Jersey to administer oaths on April 5, 2023 at 10:00
o'clock A.M. via Zoom, with respect to all matters relevant to the subject matter involved in this
action, at which time and place you will please produce the following person(s) whose testimony
is to be taken: JOHN/JANE DOE 1-10 WHICH SHALL ENCOMPASS ALL PERSONS,
INVESTIGATORS, AND/OR REPRESENTATIVES OF ATLANTIC SECURITY
INTERNATIONAL INVESTIGATIONS, INC. WHO CONDUCTED SURVEILLANCE
OF PLAINTIFF, VANITA PERRY, ON BEHALF OF DEFENDANT
PLEASE BE ADVISED of the duties imposed by R. 4:142-2(c):
DUTIES IMPOSED BY N.J. RULE 4:14-2(c) Deposition of Organization:
Duty to Prepare: the deponent organization has a duty to “prepare the witness to testify to
matters not only known by the deponent, but those that should be reasonably known by the
designating party”. Witnesses must be prepared to completely, knowledgeably, and unevasively
provide binding answers to questions within the scope of matters specified in the deposition
ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 26 of 44 Trans ID: LCV20231455404
notice. To permit otherwise, would allow the responding corporation to degrade the depositional
process by conducting, without due diligence inquiry before the deposition rather than a
thorough and vigorous inquiry before the trial.
A deponent’s designated witnesses shall testify as to matters known or reasonably
available to the organization. The testimony elicited at the R. 4:14-2(c) deposition represents the
knowledge of the corporation, not of the individual deponents. Therefore, if the deponent’s
designees are not personally knowledgeable about the matters specified in the deposition notice
and for which they have been designated to testify, the organization must prepare them to give
knowledgeable, binding answers; this duty goes beyond those matters in which witnesses had
personal involvement.
It is the responsibility of the corporation to undertake a thorough investigation in
response to the R. 4:14-2(c) deposition notice. While corporate depositions can require
extensive preparation, it is the organization’s duty to so prepare, even if a cumbersome process.
The inconvenience to the corporation is merely the result of the concomitant obligation from the
privilege of being able to use the corporate forum in order to conduct business. Since the New
Jersey R. 4:14-2(c) is modeled after the Federal Rule, the requirements are concurrent.
The corporation’s responsibility is to prepare the witness to testify property. If the R.
4:14-2(c) witness is not knowledgeable about the relevant facts, and the entity has failed to
designate an available, knowledgeable and readily identifiable witness, the appearance is, for all
practical purposes, no appearance at all. If an unprepared witness is produced to testify in
response to Rule notice, the Court can impose sanctions.
“Reasonably available” information includes all documents that a party has a legal right
or authority or practical ability to get, even if they are not in the deponent organization’s physical
possession and even of a non-party to the action has possession of them. Dead or discharged
personnel do not excuse inadequate knowledge by the witness. Nor do voluminous documents
for which review is burdensome. A court may consider evidence withheld despite reasonable
availability as similar to spoliation, which “should be sanctioned accordingly”. Likewise, an
inadequately prepared designated witness will amount to an impermissible refusal to answer a
question and a sanctionable failure to appear.
Dated: March 3, 2023 ___________________________
MARC S. SMITH, ESQ.
Attorney for Plaintiff
ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 27 of 44 Trans ID: LCV20231455404
EXHIBIT 3
ESX-L-002479-19
ESX-L-002479-19
05/04/2023
04/06/2023
2:01:35 PM
Pg 1 Pg
of 728 Trans
of 44 ID:
Trans
LCV20231216536
ID: LCV20231455404
ESX-L-002479-19
ESX-L-002479-19
05/04/2023
04/06/2023
2:01:35 PM
Pg 2 Pg
of 729 Trans
of 44 ID:
Trans
LCV20231216536
ID: LCV20231455404
ESX-L-002479-19
ESX-L-002479-19
05/04/2023
04/06/2023
2:01:35 PM
Pg 3 Pg
of 730 Trans
of 44 ID:
Trans
LCV20231216536
ID: LCV20231455404
ESX-L-002479-19
ESX-L-002479-19
05/04/2023
04/06/2023
2:01:35 PM
Pg 4 Pg
of 731 Trans
of 44 ID:
Trans
Preview
ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 1 of 44 Trans ID: LCV20231455404 LORRE SYLVAN SMITH, ESQ. 111 NORTHFIELD AVENUE - SUITE 208 WEST ORANGE, NJ 07052 (973) 325-1600 Attorney for Plaintiff Attorney ID# 103431977 Vanita Perry, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: ESSEX COUNTY Plaintiff(s) DOCKET NO: ESX-L-2479-19 vs. Civil Action Cooperman Barnabas Medical Center, OPPOSITION TO DEFENDANT’S MOTION FOR Defendant(s) RECONSIDERATION AND CROSS- MOTION TO COMPEL DEPOSITIONS AND DOCUMENTS AND FOR RECONSIDERATION TO BAR FURTHER SURVEILLANCE DISCOVERY TO: Risa Rich, Esq. Bressler Amery & Ross 325 Columbia Turnpike - Suite 301 Florham Park, NJ 07932 PLEASE TAKE NOTICE that on Friday, 5/12/2023, at 9:00 AM in the forenoon, or as soon thereafter as counsel may be heard, the undersigned shall apply to such Judge as may be sitting hearing motions at the Superior Court of New Jersey, Law Division, Essex County, at the Courthouse in Newark, New Jersey, for an Order Denying Defendant’s Motion for Reconsideration and in support of Plaintiff’s Cross-Motion to Compel Production of Documents and Depositions and for Reconsideration to Bar Further Surveillance Discovery. In support of the within application, the undersigned shall rely upon the annexed Certification. Please take further notice that the within Motion is submitted under Rule 1:6-2 and a form of Order, together ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 2 of 44 Trans ID: LCV20231455404 with a checklist is attached. The opposing parties are requested to make any opposition to the relief sought in writing within eight (8) days prior to the return date. Pursuant to Rule 1:6-2(d), the movant: (x) Waives oral argument and consents to disposition on the papers, unless opposition is filed. ( ) Does not request oral argument at this time. ( ) Requests oral argument, pursuant to Rule 1:6-2(c), for the following reasons: CERTIFICATION I certify that the original of the within Notice of Motion has been filed with the County Clerk, and that true copies have been served on all parties, as required by the Rules of Court. I certify that: () I have attempted, unsuccessfully, to reach an amicable resolution of the issues raised by this Motion. () I have, in good faith, attempted unsuccessfully to confer with the opposing party(ies) regarding the issues raised by this Motion. (X) The issues raised by this Motion are required to be addressed to and decided by the Court. Date of Pre-Trial Conference: None Date of Calendar Call: None Date of Trial: None Date: May 4, 2023 ___________________________ Marc S. Smith, Esq. Attorney for Plaintiff ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 3 of 44 Trans ID: LCV20231455404 STATEMENT OF FACTS 1. Plaintiff, Vanita Perry, sustained serious and permanent injuries requiring ankle reconstruction surgery and lumbar rhizotomies on September 8, 2017 when large machinery weighing over 1,000 pounds being operated by Defendant’s employee, Thomas Patten, ran over Plaintiff’s left leg and knocked her to the ground. 2. On October 28, 2022, Defense counsel emailed Plaintiff’s counsel a letter purporting to amend discovery advising that Defendant possessed surveillance videos of Plaintiff taken on 9/15/22, 9/25/22, 10/7/22, 10/14/22, 10/15/22, 10/16/2022, and 10/23/22 as well as static photographs of Plaintiff taken on 10/14/22, 10/15/22, and 10/21/22 taken by Atlantic Security International Investigations, Inc. Defendant did not name or identify any of the investigators nor did the amendment include any of the photographs or videos of Plaintiff. 3. While Defendant has asserted Plaintiff has been the subject of surveillance on the seven different dates above, Plaintiff certifies, per the attached (Exhibit 1), that she has been under constant surveillance since September, 2022 and continues to be surveilled and harassed by Defendant’s surveillance investigators. 4. On November 16, 2022, Plaintiff filed a Motion to Bar Defendant’s surveillance evidence, which Your Honor denied on December 16, 2022. 5. On December 19, 2022, pursuant to the Order, Plaintiff demanded all surveillance conducted as well as the names and addresses of Defendant’s investigators. 6. On January 9, 2023, Plaintiff was provided with cherry picked surveillance which consisted of six pictures of Plaintiff taken on September 15, 2022, two pictures of Plaintiff taken on October 14, 2022, and four pictures of Plaintiff taken on October 21, 2022 as well as three videos taken of Plaintiff, one on October 14, 2022, one on October 15, 2022, and one on October ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 4 of 44 Trans ID: LCV20231455404 21, 2022. No surveillance evidence was provided for September 25, October 7, October 16, or October 23, 2022 despite Defendant’s October 28, 2022 amendment to interrogatories stating surveillance for those dates was conducted. 7. On January 9, 2023, Plaintiff submitted a proposed Order to adjourn the arbitration that was pending and compel Defendant provide discovery related to its surveillance. 8. Plaintiff’s proposed Order was denied and a case management conference to address these surveillance issues was scheduled for February 28, 2023. 9. The case management conference was conducted on February 28, 2023 and Your Honor directed Plaintiff to serve a deposition notice and demand for documents on Defendant to depose Defendant’s surveillance investigators. 10. On March 3, 2023, Plaintiff served her deposition notice and document demand. (Exhibit 2). 11. In the deposition notice, Plaintiff demanded: 1. The name, address and contact number of each and every person/investigator, videographer, and/or photographer who photographed or videoed the plaintiff at any time during the pendency of this case or was otherwise involved in Plaintiff’s surveillance and the dates and times these persons surveilled Plaintiff. 2. All unedited raw surveillance videotapes and audiotapes taken of the plaintiff at any time during the pendency of this case and all time records thereof. 3. All surveillance and still photographs taken of the plaintiff at any time during the pendency of this case and all time records thereof. 4. All written reports prepared by any person that conducted surveillance of the plaintiff at any time during the pendency of this case. 5. The entire file including, but not limited to, all notes and logs for each and every person or entity that conducted surveillance of the plaintiff at any time during the pendency of this case. 6. Copies of all retainer agreements, engagement letters and the like between any ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 5 of 44 Trans ID: LCV20231455404 investigators, videographers, photographers and agency and defense counsel and/or insurance company, including costs, fees and expenses related to this surveillance and investigatory work and all invoices and bills for services for each and every person or entity that conducted surveillance of the plaintiff at any time during the pendency of this case. 7. Copy of all licenses and registration as a private investigator of all persons employed. 8. Referral sheets assigning this investigation to an investigator(s) or agency. 9. All investigators’, photographers’ or videographers’ emails, correspondence, memos, or other communications to and from the insurance company or defense counsel or the insurance company to the investigators, photographers or videographers not subject to “privilege” exceptions. 10. Copies of all reports, emails, text messages, written memoranda and documents generated by the investigatory surveillance work 12. On March 15, 2023, Defendant filed a Motion for a Protective Order regarding surveillance evidence and Plaintiff filed an Opposition and Cross-Motion seeking a protective order of her own to prohibit further surveillance on March 23, 2023. 13. On April 6, 2023, Your Honor entered an Order and Opinion Denying Defendant’s motion and Plaintiff’s cross-motion. (Exhibit 3). 14. Plaintiff then resubmitted her deposition notices and document demands on April 14, 2023 and scheduled the depositions for May 2, 2023 and May 9, 2023. (Exhibit 4) 15. On April 26, 2023, however; Defendant filed a Motion for Reconsideration seeking to prohibit Plaintiff from obtaining the discovery she requested. 16. Defendant has refused to comply with Your Honor’s Order and Plaintiff respectfully submits its Motion for Reconsideration be denied and Plaintiff’s Cross-Motion to Compel Production of Documents and Depositions be granted. Plaintiff further submits Defendant should ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 6 of 44 Trans ID: LCV20231455404 be barred from conducting any further surveillance of Plaintiff. ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 7 of 44 Trans ID: LCV20231455404 LEGAL ARGUMENT I. DEFENDANT’S MOTION FOR RECONSIDERATION IS WITHOUT MERIT AND SHOULD BE DENIED Defendant in the instant matter seeks reconsideration of Your Honor’s April 6, 2023 Order denying its motion for a protective order regarding supplying the surveillance evidence Plaintiff demanded. Defendant’s motion is without merit as Defendant merely rehashes the exact same arguments and relies on the exact same cases it relied on in its initial motion, which Your Honor rightfully denied. Defendant once against misconstrues the holding of Jenkins v. Rainner, 69 N.J. 50 (1976), just as it did in its initial motion, again asserting that Jenkins permits only a limited inquiry into surveillance evidence, alleging that inquiry is limited to “the time or times the [video/photographs] were taken, how long the surveillance continued, what plaintiff was doing, who was present, how many [bytes of data] resulted, who presently has possession of the [video/photographs], and the like.” Defendant alleges the Court in Jenkins merely carved out a small exception that requires the actual surveillance video to be produced and limits discovery as to anything else regarding surveillance, however; Defendant’s assertions are demonstrably false. The Court in Jenkins did not place any limit into the inquiry of surveillance evidence whatsoever, it merely held that with respect to questions during the pendency of a deposition: From what we have already decided with respect to the films themselves, it follows the investigator must respond to those questions directed to the time or times the movies were taken, how long the surveillance continued, what plaintiff was doing, who was present, how many reels of film resulted, who presently has possession of the films, and the like. Jenkins v. Rainner, 69 N.J. 50, 59, 350 A.2d 473, 478 (1976) ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 8 of 44 Trans ID: LCV20231455404 The Court made no mention and did not consider the discoverability of items demanded alongside a deposition notice of a surveillance investigator. It merely held that an investigator must respond to questions pertaining the time of the surveillance, the length of the surveillance, and the like during the deposition. There is absolutely nothing in the opinion in Jenkins which limits discovery pertaining to surveillance. II. DEFENDANT’S ASSERTION THAT PLAINTIFF HAS NOT DEMONSTRATED NEED FOR ANYTHING OTHER THAN THE VIDEOS IS LIKEWISE WITHOUT MERIT Defendant next asserts that Plaintiff is not entitled to the discovery she has demanded because she has not demonstrated a substantial need for it. This assertion is likewise without merit. It is well settled that relevant documents are presumptively discoverable. “Further, when materials are relevant to the issues in an action, there is “a presumption of discoverability[.]” Payton v. N.J. Tpk. Auth., 148 N.J. 524, 539, 691 A.2d 321 (1997) Mernick v. McCutchen, 442 N.J. Super. 196, 200, 121 A.3d 905, 907 (App. Div. 2015) Plaintiff demanded relevant documents, including written reports prepared by Defendant’s surveillance investigators, the notes and logs of each person who conducted surveillance of Plaintiff, invoices, bills, retainer agreements, and engagement letters, referral sheets, emails, text messages, and correspondence from the insurance company or defense counsel to the surveillance investigators not subject to any privilege exception. It is on Defendant to rebut the presumption of discoverability and it is clear that Defendant cannot. These items sought in these demands are not ‘mental impressions, conclusions, opinions, or legal theories’ of an attorney or other representative of a party and ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 9 of 44 Trans ID: LCV20231455404 Plaintiff is clearly entitled to discovery of same pursuant to the discovery rules. III. DEFENDANT HAS FAILED TO PROVIDE A PRIVILEGE LOG IN VIOLATION OF YOUR HONOR’S 04/06/2023 ORDER AND DEFENDANT SHOULD BE COMPELLED TO PROVIDE THE DOCUMENTS DEMANDED TO PLAINTIFF BY MAY 22, 2023 Your Honor’s April 6, 2023 Opinion stated, “if any items are claimed to be privileged, then a privilege log should be provided. In that way, any challenges to claims of privilege may be brought before the court for disposition.” Rather than complying with the Court Order and providing a privilege log, however; Defendant once again asserted that it is only responsible to provide the videos and there is no need for a privilege log as all of the discovery Plaintiff demanded is work product and subject to attorney client privilege. As illustrated in Plaintiff’s initial opposition to Defendant’s motion, Defendant is not entitled to render conclusive its own evaluation of the materials in question and decide that they are privileged and not discoverable. Defendant must turn the documents it asserts are privileged over to the Court as it is Defendant’s burden to prove these items are protected by any privilege. “The burden of proving a communication is protected by the attorney-client privilege rests with “the person ... asserting the privilege.” Hedden v. Kean Univ., 434 N.J. Super. 1, 12 (App. Div. 2013). In United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 568, 483 A.2d 821, 828 (App. Div. 1984), the Court held that the party invoking the attorney-client privilege could not render conclusive its own evaluation of the subject materials and that disclosure to the Court and in camera review was required. Regarding documents purported to be protected by the attorney- client privilege, it stated: ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 10 of 44 Trans ID: LCV20231455404 Obviously, this question cannot be fairly resolved without a painstaking review and inspection of the communications sought to be barred. We note in that regard that plaintiff cannot invoke the privilege to render conclusive its own evaluation of the nature and character of the materials in question. Rather, an in camera inspection by the court is clearly required. United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 568, 483 A.2d 821, 828 (App. Div. 1984) Defendant was required to turn over its complete file and its investigative agency’s complete file, all communications, reports, emails, memos, text messages, and documents to the Court and all documents it asserts are privileged to the Court pursuant Your Honor’s Order and Rule 4:10-2(e), which provides: (1) Information Withheld. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Defendant, however; has failed to comply with Your Honor’s Order, in violation of Rule 4:23-2. Accordingly, Plaintiff respectfully submits Defendant should be compelled to provide the documents Plaintiff demanded by May 22, 2023 and that its representatives be compelled to appear for depositions on June 5, 6, or 7th 2023, subject to modification by Plaintiff upon review of the records. Rule 4:23-2 governs failure to comply with an Order. Rule 4:23-2(b) states: (b) Other Matters. If a party or an officer, director, or managing or authorized agent of a party or a person designated under R. 4:14-2(c) or 4:15-1 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under R. 4:23-1, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 11 of 44 Trans ID: LCV20231455404 (2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence; (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof with or without prejudice, or rendering a judgment by default against the disobedient party; (4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Pursuant to Your Honor’s Order, Plaintiff sent new deposition notices on April 14, 2023. Plaintiff noticed the custodian of records of Atlantic Security International Investigations to appear for deposition on May 2, 2023 and for the investigators of Atlantic Security to appear on May 9, 2023. Plaintiff’s notice included a document demand for the following: 1. The name, address and contact number of each and every person/investigator, videographer, and/or photographer who photographed or videoed the plaintiff at any time during the pendency of this case or was otherwise involved in Plaintiff’s surveillance and the dates and times these persons surveilled Plaintiff. 2. All unedited raw surveillance videotapes and audiotapes taken of the plaintiff at any time during the pendency of this case and all time records thereof. 3. All surveillance and still photographs taken of the plaintiff at any time during the pendency of this case and all time records thereof. 4. All written reports prepared by any person that conducted surveillance of the plaintiff at any time during the pendency of this case. 5. The entire file including, but not limited to, all notes and logs for each and every person or entity that conducted surveillance of the plaintiff at any time during the pendency of this case. 6. Copies of all retainer agreements, engagement letters and the like between any ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 12 of 44 Trans ID: LCV20231455404 investigators, videographers, photographers and agency and defense counsel and/or insurance company, including costs, fees and expenses related to this surveillance and investigatory work and all invoices and bills for services for each and every person or entity that conducted surveillance of the plaintiff at any time during the pendency of this case. 7. Copy of all licenses and registration as a private investigator of all persons employed. 8. Referral sheets assigning this investigation to an investigator(s) or agency. 9. All investigators’, photographers’ or videographers’ emails, correspondence, memos, or other communications to and from the insurance company or defense counsel or the insurance company to the investigators, photographers or videographers not subject to “privilege” exceptions. 10. Copies of all reports, emails, text messages, written memoranda and documents generated by the investigatory surveillance work Defendant, however; did not comply with its discovery obligations and violated Your Honor’s April 6, 2023 Order. Your Honor was clear in the Order that the items Plaintiff demanded were discoverable and that if any of the items were claimed to be privileged, a privilege log should have been provided. Plaintiff was first notified of Defendant’s surveillance efforts on October 28, 2023. Plaintiff was not provided with any photographs or videos until January 9, 2023. On February 28, 2023, the parties appeared for a case management conference and Your Honor entered an Order requiring Plaintiff to send a deposition notice and document demand, which Plaintiff sent on March 3, 2023. Two months later, Defendant has still refused to provide the discovery Plaintiff is entitled to and has refused to comply with a Court Order. Accordingly, as Defendant has failed to comply with a Court Order, Plaintiff respectfully submits Defendant should be compelled to produce all of the items Plaintiff demanded by May ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 13 of 44 Trans ID: LCV20231455404 22, 2023, in advance of the deposition of Atlantic Security’s investigators, which Plaintiff respectfully submits Defendant’s representatives should be compelled to appear for on June 5, 6, or 7, 2023 at a time to be determined by Plaintiff, subject to modification by Plaintiff upon receipt and review of the records. Plaintiff further submits Defendant should be required to certify that it made inquiries for all of records Plaintiff demanded in the deposition notice. IV. DEFENDANT SHOULD BE BARRED FROM CONDUCTING ANY FURTHER SURVEILLANCE OF PLAINTIFF AS FURTHER SURVEILLANCE WOULD CAUSE SIGNIFICANT DELAY IN THE RESOLUTION OF THIS MATTER AND PLAINTIFF SHOULD BE ENTITLED TO INJUNCTIVE RELIEF Defendant has asserted that it has fully produced its surveillance footage of Plaintiff, however; Defendant has only provided Plaintiff with surveillance evidence relating to four days, September 15, October 14, October 15, and October 21, 2022. In Defendant’s October 28, 2022 amendment to interrogatories, it asserted it had pictures and video of Plaintiff on September 25, October 7, October 16, and October 13, 2022 as well but no surveillance evidence for those dates was provided. In addition to the four dates evidence has been withheld for, Plaintiff, asserts that she has been the subject of continuing surveillance which has caused Plaintiff to suffer from severe anxiety and mental anguish. Plaintiff filed a cross-motion for a protective order to prohibit further surveillance, which Your Honor denied, stating that Plaintiff did not “provide any analysis of how that rule could be used to support a claim for what on its face appears to be a form of injunctive relief.” The denial of Plaintiff’s cross-motion was made without prejudice. Accordingly, Plaintiff respectfully seeks reconsideration of her motion for a protective order to prohibit further surveillance. ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 14 of 44 Trans ID: LCV20231455404 Rule 4:10-3 governs protective orders. It provides: On motion by a party or by the person from whom discovery is sought, the court, for good cause shown or by stipulation of the parties, may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including, but not limited to, one or more of the following: (a) That the discovery not be had;(b) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;(c) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;(d) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;(e) That discovery be conducted with no one present except persons designated by the court;(f) That a deposition after being sealed be opened only by order of the court;(g) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;(h) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to the motion. Defendant’s continued and constant surveillance of Plaintiff serves no purpose other than to harass, embarrass, and intimidate her and has caused her great mental anguish and Plaintiff seeks injunctive relief to prohibit further surveillance. Rule 4:52 governs injunctions. Rule 4:52-2 provides: During the pendency of an action, either a temporary restraint or an interlocutory injunction may be applied for either by motion or by order to show cause. The Courts have outlined a series of factors which must be met in order to grant injunctive relief: In determining whether to enter an interlocutory injunction, a judge must find that the movant has demonstrated a reasonable probability of success on the merits; that a balancing of the equities and hardships favors injunctive relief; that the movant has no adequate remedy at law and that the irreparable injury to be ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 15 of 44 Trans ID: LCV20231455404 suffered in the absence of injunctive relief is substantial and imminent; and that the public interest will not be harmed. Crowe v. De Gioia, 90 N.J. 126, 132–34, 447 A.2d 173 (1982); McKenzie v. Corzine, 396 N.J.Super. 405, 413, 934 A.2d 651 (App.Div.2007); Subcarrier Commcn's, Inc. v. Day, 299 N.J.Super. 634, 638, 691 A.2d 876 (App.Div.1997); J.H. Renarde, Inc. v. Sims, 312 N.J.Super. 195, 206, 711 A.2d 410 (Ch.Div.1998). Each of these factors must be clearly and convincingly demonstrated. McKenzie, supra, 396 N.J.Super. at 414, 934 A.2d 651; Subcarrier, supra, 299 N.J.Super. at 639, 691 A.2d 876; American Employers' Ins. Co. v. Elf Atochem N.A., Inc., 280 N.J.Super. 601, 610–11 n. 8, 656 A.2d 58 (App.Div.1995). However, although it is generally understood that all the Crowe factors must weigh in favor of injunctive relief, see, e.g., McKenzie, supra, 396 N.J.Super. at 414, 934 A.2d 651; Sherman v. Sherman, 330 N.J.Super. 638, 642–43, 750 A.2d 229 (Ch.Div.1999), a court may take a less rigid view than it would after a final hearing when the interlocutory injunction is merely designed to preserve the status quo. General Elec. Co. v. Gem Vacuum Stores, Inc., 36 N.J.Super. 234, 236–37, 115 A.2d 626 (App.Div.1955). The issuance of an interlocutory injunction must be squarely based on an appropriate exercise of sound judicial discretion, N.J. State Bar Ass'n v. Northern N.J. Mortgage Assocs., 22 N.J. 184, 194, 123 A.2d 498 (1956); Bancroft & Sons Co. v. Shelley Knitting Mills, Inc., 268 F.2d 569, 573 (3d Cir.1959), which—when limited to preserving the status quo during the suit's pendency—may permit the court to place less emphasis on a particular Crowe factor if another greatly requires the issuance of the remedy. Ibid. Waste Mgmt. of New Jersey, Inc. v. Union Cnty. Utilities Auth., 399 N.J. Super. 508, 519–20, 945 A.2d 73, 80 (App. Div. 2008) Each of the factors has been met in the instant matter to favor injunctive relief. Plaintiff will suffer irreparable harm if surveillance is permitted to continue and she has no adequate remedy at law. Plaintiff is already suffering from mental anguish and depression as she asserts Defendant’s investigators are following her wherever she goes. Certainly the public interest will not be harmed if Defendant is prohibited from conducting further surveillance and the balancing of equities and hardships clearly favors injunctive relief. Defendant has no need to continue to monitor Plaintiff while Plaintiff would be subject to great annoyance, embarrassment, and mental anguish if it is permitted to continue. ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 16 of 44 Trans ID: LCV20231455404 In addition, Defendant should be barred from conducting any further surveillance of Plaintiff and submitting any other surveillance evidence of Plaintiff other than what it has already submitted because further surveillance evidence would cause significant delays in the ultimate resolution of this matter. Arbitration in this matter is scheduled for July 11, 2023 and Your Honor stated in the April 6, 2023 Opinion that “the parties are to complete discovery in a manner so as to allow the arbitration to go forward as scheduled.” It would be unlikely that the arbitration would be able to go forward as scheduled if Defendant is able to continue its surveillance of Plaintiff or submit surveillance evidence of Plaintiff other than what it has already submitted as Plaintiff would have to redepose Defendant’s investigators. Accordingly, Plaintiff respectfully submits her cross-motion to prohibit further surveillance be granted. CONCLUSION For the reasons stated, Plaintiff respectfully submits Defendant’s Motion for Reconsideration be denied and her Cross-Motion to Compel Production of Documents and Depositions and for Reconsideration to Prohibit Further Surveillance be granted. ____________________ MARC S. SMITH, ESQ. Attorney for Plaintiff ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 17 of 44 Trans ID: LCV20231455404 EXHIBIT 1 ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 18 of 44 Trans ID: LCV20231455404 ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 19 of 44 Trans ID: LCV20231455404 ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 20 of 44 Trans ID: LCV20231455404 EXHIBIT 2 ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 21 of 44 Trans ID: LCV20231455404 LORRE SYLVAN SMITH COUNSELORS AT LAW SUITE 208 111 NORTHFIELD AVENUE LORRE SYLVAN SMITH WEST ORANGE, NEW JERSEY 07052 SUITE 208E NEW JERSEY AND FLORIDA BARS 191 WOODPORT ROAD SPARTA, NEW JERSEY 07871 MARC S. SMITH NEW JERSEY BAR ____________ PLEASE REPLY TO WEST ORANGE 973 325-1600 FACSIMILE 973 325-1655 www.lorresylvansmith.com email: lorre@lorresylvansmith.com email: marc@lorresylvansmith.com March 3, 2023 Via Email Risa Rich, Esq. Bressler Amery & Ross 325 Columbia Turnpike - Suite 301 Florham Park, NJ 07932 Re: Perry (Vanita) v. St Barnabas D/A: 9/8/2017 Our File No.: N2546 Docket No.: ESX-L-2479-19 Dear Ms. Rich: Enclosed please find a deposition notice and document demand for the Custodian of Records of Atlantic Security International Investigations, Inc. for March 22, 2023 and a deposition notice for the persons, investigators, and representatives of Atlantic Security International Investigations, Inc. who conducted surveillance of Plaintiff for April 5, 2023 via Zoom. Very truly yours, MARC S. SMITH MSS/ljs Enclosure CC: J.H. Buehrer & Associates THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS LEGALLY PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPY OF THIS FACSIMILE MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS FACSIMILE MESSAGE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ADDRESS ABOVE VIA THE UNITED STATES POSTAL SERVICE. THANK YOU. ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 22 of 44 Trans ID: LCV20231455404 LORRE SYLVAN SMITH, ESQ. 111 NORTHFIELD AVENUE, SUITE 208 WEST ORANGE, NEW JERSEY 07052 973-325-1600 Attorneys for Plaintiff Attorney ID#: 013431977 VANITA PERRY, SUPERIOR COURT OF NEW JERSEY LAW DIVISION : ESSEX COUNTY Plaintiff, DOCKET NO.: ESX-L-2479-19 vs. Civil Action SAINT BARNABAS MEDICAL CENTER, NOTICE TO TAKE ORAL DEPOSITIONS et al., Defendant(s). TO: Risa Rich, Esq. Bressler Amery Ross PC 325 Columbia Turnpike, Suite 301 PO Box 1980 Morristown, NJ 07962 MADAM: PLEASE TAKE NOTICE, that in accordance with the Rules of Civil Practice and Procedure, testimony will be taken by deposition upon oral examination before a person authorized by the laws of the State of New Jersey to administer oaths on March 22, 2023 at 10:00 o'clock A.M. via Zoom, with respect to all matters relevant to the subject matter involved in this action, at which time and place you will please produce the following person(s) whose testimony is to be taken: CUSTODIAN OF RECORDS OF ATLANTIC SECURITY INTERNATIONAL INVESTIGATIONS, who shall produce at said time and place the following documents pertaining to the surveillance of Plaintiff, Vanita Perry: 1. The name, address and contact number of each and every person/investigator, videographer, and/or photographer who photographed or videoed the plaintiff at any time during the pendency of this case or was otherwise involved in Plaintiff’s surveillance and the dates and times these persons surveilled Plaintiff. 2. All unedited raw surveillance videotapes and audiotapes taken of the plaintiff at any time during the pendency of this case and all time records thereof. ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 23 of 44 Trans ID: LCV20231455404 3. All surveillance and still photographs taken of the plaintiff at any time during the pendency of this case and all time records thereof. 4. All written reports prepared by any person that conducted surveillance of the plaintiff at any time during the pendency of this case. 5. The entire file including, but not limited to, all notes and logs for each and every person or entity that conducted surveillance of the plaintiff at any time during the pendency of this case. 6. Copies of all retainer agreements, engagement letters and the like between any investigators, videographers, photographers and agency and defense counsel and/or insurance company, including costs, fees and expenses related to this surveillance and investigatory work and all invoices and bills for services for each and every person or entity that conducted surveillance of the plaintiff at any time during the pendency of this case. 7. Copy of all licenses and registration as a private investigator of all persons employed. 8. Referral sheets assigning this investigation to an investigator(s) or agency. 9. All investigators’, photographers’ or videographers’ emails, correspondence, memos, or other communications to and from the insurance company or defense counsel or the insurance company to the investigators, photographers or videographers not subject to “privilege” exceptions. 10. Copies of all reports, emails, text messages, written memoranda and documents generated by the investigatory surveillance work PLEASE BE ADVISED of the duties imposed by R. 4:142-2(c): DUTIES IMPOSED BY N.J. RULE 4:14-2(c) Deposition of Organization: Duty to Prepare: the deponent organization has a duty to “prepare the witness to testify to matters not only known by the deponent, but those that should be reasonably known by the designating party”. Witnesses must be prepared to completely, knowledgeably, and unevasively provide binding answers to questions within the scope of matters specified in the deposition notice. To permit otherwise, would allow the responding corporation to degrade the depositional process by conducting, without due diligence inquiry before the deposition rather than a thorough and vigorous inquiry before the trial. A deponent’s designated witnesses shall testify as to matters known or reasonably available to the organization. The testimony elicited at the R. 4:14-2(c) deposition represents the ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 24 of 44 Trans ID: LCV20231455404 knowledge of the corporation, not of the individual deponents. Therefore, if the deponent’s designees are not personally knowledgeable about the matters specified in the deposition notice and for which they have been designated to testify, the organization must prepare them to give knowledgeable, binding answers; this duty goes beyond those matters in which witnesses had personal involvement. It is the responsibility of the corporation to undertake a thorough investigation in response to the R. 4:14-2(c) deposition notice. While corporate depositions can require extensive preparation, it is the organization’s duty to so prepare, even if a cumbersome process. The inconvenience to the corporation is merely the result of the concomitant obligation from the privilege of being able to use the corporate forum in order to conduct business. Since the New Jersey R. 4:14-2(c) is modeled after the Federal Rule, the requirements are concurrent. The corporation’s responsibility is to prepare the witness to testify property. If the R. 4:14-2(c) witness is not knowledgeable about the relevant facts, and the entity has failed to designate an available, knowledgeable and readily identifiable witness, the appearance is, for all practical purposes, no appearance at all. If an unprepared witness is produced to testify in response to Rule notice, the Court can impose sanctions. “Reasonably available” information includes all documents that a party has a legal right or authority or practical ability to get, even if they are not in the deponent organization’s physical possession and even of a non-party to the action has possession of them. Dead or discharged personnel do not excuse inadequate knowledge by the witness. Nor do voluminous documents for which review is burdensome. A court may consider evidence withheld despite reasonable availability as similar to spoliation, which “should be sanctioned accordingly”. Likewise, an inadequately prepared designated witness will amount to an impermissible refusal to answer a question and a sanctionable failure to appear. Dated: March 3, 2023 ___________________________ MARC S. SMITH, ESQ. Attorney for Plaintiff cc: J.H. Buehrer & Associates - via fax 732-608-6116 ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 25 of 44 Trans ID: LCV20231455404 LORRE SYLVAN SMITH, ESQ. 111 NORTHFIELD AVENUE, SUITE 208 WEST ORANGE, NEW JERSEY 07052 973-325-1600 Attorneys for Plaintiff Attorney ID#: 013431977 VANITA PERRY, SUPERIOR COURT OF NEW JERSEY LAW DIVISION : ESSEX COUNTY Plaintiff, DOCKET NO.: ESX-L-2479-19 vs. Civil Action SAINT BARNABAS MEDICAL CENTER, NOTICE TO TAKE ORAL DEPOSITIONS et al., Defendant(s). TO: Risa Rich, Esq. Bressler Amery Ross PC 325 Columbia Turnpike, Suite 301 PO Box 1980 Morristown, NJ 07962 MADAM: PLEASE TAKE NOTICE, that in accordance with the Rules of Civil Practice and Procedure, testimony will be taken by deposition upon oral examination before a person authorized by the laws of the State of New Jersey to administer oaths on April 5, 2023 at 10:00 o'clock A.M. via Zoom, with respect to all matters relevant to the subject matter involved in this action, at which time and place you will please produce the following person(s) whose testimony is to be taken: JOHN/JANE DOE 1-10 WHICH SHALL ENCOMPASS ALL PERSONS, INVESTIGATORS, AND/OR REPRESENTATIVES OF ATLANTIC SECURITY INTERNATIONAL INVESTIGATIONS, INC. WHO CONDUCTED SURVEILLANCE OF PLAINTIFF, VANITA PERRY, ON BEHALF OF DEFENDANT PLEASE BE ADVISED of the duties imposed by R. 4:142-2(c): DUTIES IMPOSED BY N.J. RULE 4:14-2(c) Deposition of Organization: Duty to Prepare: the deponent organization has a duty to “prepare the witness to testify to matters not only known by the deponent, but those that should be reasonably known by the designating party”. Witnesses must be prepared to completely, knowledgeably, and unevasively provide binding answers to questions within the scope of matters specified in the deposition ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 26 of 44 Trans ID: LCV20231455404 notice. To permit otherwise, would allow the responding corporation to degrade the depositional process by conducting, without due diligence inquiry before the deposition rather than a thorough and vigorous inquiry before the trial. A deponent’s designated witnesses shall testify as to matters known or reasonably available to the organization. The testimony elicited at the R. 4:14-2(c) deposition represents the knowledge of the corporation, not of the individual deponents. Therefore, if the deponent’s designees are not personally knowledgeable about the matters specified in the deposition notice and for which they have been designated to testify, the organization must prepare them to give knowledgeable, binding answers; this duty goes beyond those matters in which witnesses had personal involvement. It is the responsibility of the corporation to undertake a thorough investigation in response to the R. 4:14-2(c) deposition notice. While corporate depositions can require extensive preparation, it is the organization’s duty to so prepare, even if a cumbersome process. The inconvenience to the corporation is merely the result of the concomitant obligation from the privilege of being able to use the corporate forum in order to conduct business. Since the New Jersey R. 4:14-2(c) is modeled after the Federal Rule, the requirements are concurrent. The corporation’s responsibility is to prepare the witness to testify property. If the R. 4:14-2(c) witness is not knowledgeable about the relevant facts, and the entity has failed to designate an available, knowledgeable and readily identifiable witness, the appearance is, for all practical purposes, no appearance at all. If an unprepared witness is produced to testify in response to Rule notice, the Court can impose sanctions. “Reasonably available” information includes all documents that a party has a legal right or authority or practical ability to get, even if they are not in the deponent organization’s physical possession and even of a non-party to the action has possession of them. Dead or discharged personnel do not excuse inadequate knowledge by the witness. Nor do voluminous documents for which review is burdensome. A court may consider evidence withheld despite reasonable availability as similar to spoliation, which “should be sanctioned accordingly”. Likewise, an inadequately prepared designated witness will amount to an impermissible refusal to answer a question and a sanctionable failure to appear. Dated: March 3, 2023 ___________________________ MARC S. SMITH, ESQ. Attorney for Plaintiff ESX-L-002479-19 05/04/2023 2:01:35 PM Pg 27 of 44 Trans ID: LCV20231455404 EXHIBIT 3 ESX-L-002479-19 ESX-L-002479-19 05/04/2023 04/06/2023 2:01:35 PM Pg 1 Pg of 728 Trans of 44 ID: Trans LCV20231216536 ID: LCV20231455404 ESX-L-002479-19 ESX-L-002479-19 05/04/2023 04/06/2023 2:01:35 PM Pg 2 Pg of 729 Trans of 44 ID: Trans LCV20231216536 ID: LCV20231455404 ESX-L-002479-19 ESX-L-002479-19 05/04/2023 04/06/2023 2:01:35 PM Pg 3 Pg of 730 Trans of 44 ID: Trans LCV20231216536 ID: LCV20231455404 ESX-L-002479-19 ESX-L-002479-19 05/04/2023 04/06/2023 2:01:35 PM Pg 4 Pg of 731 Trans of 44 ID: Trans