RULE 4:12 PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN; AUTHORITY

0019 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:09:59 2006 107 NJ COURT RULES 4:12-2.01 RULE 4:12 PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN; AUTHORITY 4:12-1 Within the State Within this State, depositions shall be taken before a person authorized by the laws of this State to administer oaths. Note: Source R.R. 4:18-1. Part IV 4:12-1.01 Bochet s Practice Tips to Rule 4:12-1 t Warning: N.J. Ct. R. 4:12 allows depositions to be conducted before a person authorized to administer oaths in New Jersey. However, effective January 11, 2007, only persons certified as court reporters may practice shorthand reporting in court proceedings, including depositions, in New Jersey. NJS 45:15B-9, 45:15B-10. 4:12-2 Without the state but within the United States Outside this State but within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before a person authorized to administer oaths by the laws of this State, of the United States or of the place where the examination is held. Note: Source R.R. 4:18-2. 4:12-2.01 Bochet s Practice Tips to Rule 4:12-2 t Warning: Counsel must ensure that the local reporter before whom a deposition is taken is authorized to administer oaths under the laws of the state where the proceeding is conducted.

0020 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:09:59 2006 4:12-3.01 DISCOVERY 108 4:12-3 In foreign countries Unless an international treaty or convention otherwise requires, in a foreign country depositions shall be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or (b) before such person or officer as may be appointed by commission or under letters rogatory. A commission or letters rogatory shall be issued on application and notice, and on such terms and with such directions as are appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed To the Appropriate Judicial Authority in (here name the country). Note: Source R.R. 4:18-3. Amended July 22, 1983 to be effective September 12, 1983; amended July 13, 1994 to be effective September 1, 1994. 4:12-3.01 Bochet s Practice Tips to Rule 4:12-3 z Strategic Point: When taking a deposition in a foreign country, Counsel should determine whether there is a treaty or convention governing the procedures for that nation. Counsel should then attempt to schedule the deposition according to the availability of an officer of the United States Department of State to administer the oath. If no such officer is available, an application must be made pursuant to N.J. Ct. R. 4:11-5 for the court to issue a commission or letter rogatory (letter of request). Many countries will not compel a person to appear without a commission or letter rogatory issued by a judicial authority. t Warning: Counsel new to the area of international law would be well-served to seek advice from an experienced practitioner as to how to proceed in this murky field. 4:12-3.02 Bochet s Annotations to Rule 4:12-3 Husa v. Laboratoires Servier SA, 326 N.J. Super. 150, 740 A.2d 1092 (App. Div. 1999). In a personal injury suit against a French drug manufacturer, defendant manufacturer resisted depositions of three residents of France connected to the defendant unless the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (28 USCS 1781) was applied. The trial court refused to apply the Convention. The Appellate Division reversed. The court recognized that Convention procedures were optional, but held that the procedures should be used whenever possible unless they will require an unjust result or a prejudicial delay. State by Kugler v. Schaedel, 120 N.J. Super. 21, 293 A.2d 221 (App. Div. 1972). In an action by the State to obtain assets of decedent s estate by escheat, the court ordered letters

0021 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:09:59 2006 109 NJ COURT RULES 4:12-4.01 rogatory to the appropriate authority in the Soviet Union. These letters rogatory consisted of questions submitted by counsel for the parties to two witnesses residing in that country. The trial judge demanded that the hearing occur before the responses were received. The Appellate Division reversed ordering the trial judge to consider the answers in the letters rogatory which had been received following trial, saying that the delay over which claimant had no control should not prejudice its ability to protects its rights. For additional cases, see N.J. Ct. R. 4:12-3 at www.lexis.com. 4:12-4 Disqualification for interest No deposition shall be taken before or recorded by a person, whether or not a certified shorthand reporter, who is a relative, employee or attorney of a party or a relative or employee of such attorney or is financially interested in the action. Any regulations of the State Board of Shorthand Reporters respecting disqualification of certified shorthand reporters shall apply to all persons taking or recording a deposition. Note: Source R.R. 4:18-4; amended July 17, 1975 to be effective September 8, 1975; amended July 12, 2002 to be effective September 3, 2002. Part IV 4:12-4.01 Bochet s Practice Tips to Rule 4:12-4 t Warning: Pursuant to N.J. Admin. Code 13:43-5.4, certified shorthand reporters are subject to suspension or revocation of their certification for providing or arranging services where they are any of the following: 1. A party in the case; 2. A relative, agent or employee of a party; 3. A person with an interest in the outcome; or 4. A relative, agent or employee of anyone with a financial stake in the case.

0022 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:09:59 2006 4:13-0.01 DISCOVERY 110 RULE 4:13 STIPULATIONS REGARDING DISCOVERY PROCEDURE RULE 4:13 STIPULATIONS REGARDING DISCOVERY PROCEDURE Unless the court orders otherwise, the parties may by written stipulation: (a) Provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (b) Modify the procedure provided by these rules for other methods of discovery, except that stipulations extending the time provided in R. 4:17 (interrogatories to parties) may be made only with the approval of the court. Note: Source R.R. 4:19. Former rule deleted and new R. 4:13 adopted July 14, 1972 to be effective September 5, 1972. 4:13-0.01 Bochet s Practice Tips to Rule 4:13 z Strategic Point: N.J. Ct. R. 4:13(a) permits counsel to waive the procedural niceties which pertain to arranging and conducting depositions. Freely agreeing to stipulations to accommodate fellow counsel is not just the excepting of formalities. It is professionalism at its best. t Warning: The time limits pertaining to interrogatories provided in N.J. Ct. R. 4:17-1 et seq. may not be altered by stipulation pursuant to N.J. Ct. R. 4:13. When an extension of the time prescribed to propound or respond to interrogatories is needed, counsel should file a consent order to extend time with the assigned judge, accompanied by a letter outlining why an extension of time is needed. In the alternative, counsel may file a notice of accompanied by an explanatory affidavit and proposed order. N.J. Ct. R. 1:6-2, 1:6-3, 4:42-1.

0023 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:09:59 2006 111 NJ COURT RULES 4:14-1.02 RULE 4:14 DEPOSITIONS UPON ORAL EXAMINATION 4:14-1 When depositions may be taken Except as otherwise provided by R. 4:14-9(a), after commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 35 days after service of the summons and complaint upon the defendant by any manner, except that leave is not required if the defendant has already served a notice of taking deposition or otherwise sought discovery. The attendance of witnesses may be compelled by subpoena as provided in R. 4:14-7. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. Note: Source R.R. 4:16-1. Former rule deleted and new R. 4:14-1 adopted July 14, 1972 to be effective September 5, 1972 (formerly R. 4:10-1); amended July 21, 1980 to be effective September 8, 1980; amended July 10, 1998 to be effective September 1, 1998; amended July 5, 2000 to be effective September 5, 2000. Part IV 4:14-1.01 Bochet s Practice Tips to Rule 4:14-1 t Warning: Though N.J. Ct. R. 4:14-1 does not set a specific time period within which depositions must be taken, counsel must be guided by the discovery end date of the case when scheduling depositions. See N.J. Ct. R. 4:24-1. Exception: The deposition of an expert witness that counsel intends to use in lieu of trial testimony may not be scheduled until 30 days after service upon all parties of that expert s report. N.J. Ct. R. 4:14-9(a). 4:14-1.02 Bochet s Annotations to Rule 4:14-1 Horon Holding Corp. v. McKenzie, 341 N.J. Super. 117, 775 A.2d 111 (App. Div. 2001). A motion to quash a discovery subpoena by an attorney for defendant judgment debtor was denied by the trial court. Movant contended that questions concerning the current

0024 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:09:59 2006 4:14-1.02 DISCOVERY 112 address of the defendant are protected by the attorney-client privilege. The Appellate Division affirmed, finding that since movant was not counsel of record in the case, his deposition is permitted by N.J. Ct. R. 4:14-1. The court further held that objection to the deposition due to attorney-client privilege is inappropriate, as the privilege could only be asserted on a question-by-question basis. Finally, the privilege does not attach when it is used to essentially commit a fraud on the court. Kerr v. Able Sanitary & Envtl Servs., 295 N.J. Super. 147, 684 A.2d 961 (App. Div. 1996). Plaintiff s attorney moved to quash a subpoena served upon him by defendant in this consumer fraud/professional negligence action. The defendant claimed that movant had independent knowledge of relevant facts, basing that assertion on an interview given by counsel to a reporter. The trial court refused to quash the subpoena. The Appellate Division reversed, finding that while N.J. Ct. R 4:14-1 permits a deposition of adverse counsel, the discovery sought must be relevant. The party seeking the opposing counsel s deposition has the burden of demonstrating the need and propriety of taking the deposition. Berrie v. Berrie, 188 N.J. Super. 274, 457 A.2d 76 (Ch. Div. 1983). Plaintiff issued a subpoena for the deposition of his brother to discuss personal financial and business information, allegedly relevant to the valuation of plaintiff s assets in a matrimonial case. The court found though that the deposition of a non-party is permissible under N.J. Ct. R 4:14-1, in this case, plaintiff s need for the information is outweighed by the non-party s right to keep personal finances private and his company s right to protect the confidentiality of its business information. The subpoena was quashed. For additional cases, see N.J. Ct. R. 4:14-1 at www.lexis.com. 4:14-2 Notice of examination; general requirements; deposition of organization (a) Notice. Except as otherwise provided by R. 4:14-9(b), a party desiring to take the deposition of any person upon oral examination shall give not less than 10 days notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, which shall be reasonably convenient for all parties, and the name and address of each person to be examined, if known, and, if the name is not known a general description sufficient to identify the person or the particular class or group to which the person belongs. If a defendant fails to appear or answer in any civil action within the time prescribed by these rules, depositions may be taken without notice to that defendant. (b) Time. The court may for cause shown enlarge or shorten the time for taking the deposition.

0025 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:09:59 2006 113 NJ COURT RULES 4:14-2.02 (c) Organizations. A party may in the notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth for each person designated the matters on which testimony will be given. The persons so designated shall testify as to matters known or reasonably available to the organization. (d) Production of Things. The notice to a party deponent may be accompanied by a request made in compliance with and in accordance with the procedure stated in R. 4:18-1 for the production of documents and tangible things at the taking of the deposition. Note: Source R.R. 4:20-1. Former rule deleted and new R. 4:14-2 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-1 and 4:14-1); paragraph (a) amended July 21, 1980 to be effective September 8, 1980; paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994. Part IV 4:14-2.01 Bochet s Practice Tips to Rule 4:14-2 Exception: A deposition of an expert that counsel intends to use in lieu of trial testimony cannot be set less than 30 days after service of that expert s report. N.J. Ct. R. 4:14-9(a). 4:14-2.02 Bochet s Annotations to Rule 4:14-2 In re Opinion 668 of the Advisory Comm. on Prof l Ethics, 134 N.J. 294, 303, 633 A.2d 959 (1993). In an Advisory Opinion by the Supreme Court addressing the issue of ex parte interviews of corporate employees, the court cited N.J. R. of Prof l Conduct 4.2 which prohibits communication with a corporate adversary s employees entrusted with the management of the case in question, and employees whose conduct, in and of itself, establishes the organization s liability. State v. Ciba-Geigy Corp., 247 N.J. Super. 314, 589 A.2d 180 (App. Div. 1991). In a criminal action against corporation, the defendant sought a protective order to prohibit ex parte interviews of its employees by state investigators. Although it affirmed the denial of the defendant s motion, the Appellate Division held that employees whose acts or statements bind the corporation should not be interviewed. The court pointed to N.J. Ct. R 4:14-2(c) as the means by which corporations may designate such persons for depositions. Gero v. Cutler, 66 N.J. 443, 445, 332 A.2d 593 (1975) (proper method to object to inconvenience of time or place of deposition notice pursuant to N.J. Ct. R 4:14-2 is motion under N.J. Ct. R. 4:10-3.) D Agostino v. Johnson & Johnson, 242 N.J. Super. 267, 576 A.2d 893 (App. Div. 1990) (parent corporation required to produce executives of wholly owned subsidiary for depositions). For additional cases, see N.J. Ct. R. 4:14-2 at www.lexis.com.

0026 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:09:59 2006 4:14-2.02 DISCOVERY 114 4:14-3 Examination and cross-examination; record of examination; oath; objections (a) Examination and Cross-Examination. Examination and crossexamination of deponents may proceed as permitted in the trial of actions in open court, but the cross-examination need not be limited to the subject matter of the examination in chief. (b) Oath; Record. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under the officer s direction and in the officer s presence, record the testimony of the witness. The testimony shall be recorded and transcribed on a typewriter unless the parties agree otherwise. (c) Objections. No objection shall be made during the taking of a deposition except those addressed to the form of a question or to assert a privilege, a right to confidentiality or a limitation pursuant to a previously entered court order. The right to object on other grounds is preserved and may be asserted at the time the deposition testimony is proffered at trial. An objection to the form of a question shall include a statement by the objector as to why the form is objectionable so as to allow the interrogator to amend the question. No objection shall be expressed in language that suggests an answer to the deponent. Subject to R. 4:14-4, an attorney shall not instruct a witness not to answer a question unless the basis of the objection is privilege, a right to confidentiality or a limitation pursuant to a previously entered court order. All objections made at the time of the examination to the qualifications of the officer taking the deposition or the person recording it, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidential objections to a videotaped deposition of a treating physician or expert witness which is taken for use in lieu of trial testimony shall be made and proceeded upon in accordance with R. 4:14-9(f). (d) No Adjournment. Except as otherwise provided by R. 4:14-4 and R. 4:23-1(a) all depositions shall be taken continuously and without adjournment unless the court otherwise orders or the parties and the deponent stipulate otherwise. (e) Written Questions. In lieu of participating in an oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

0027 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:00 2006 115 NJ COURT RULES 4:14-3.02 (f) Consultation with the Deponent. Once the deponent has been sworn, there shall be no communication between the deponent and counsel during the course of the deposition while testimony is being taken except with regard to the assertion of a claim of privilege, a right to confidentiality or a limitation pursuant to a previously entered court order. Note: Source R.R. 4:16-3, 4:20-3. Paragraphs (b), (d) and (e) amended July 14, 1972 to be effective September 5, 1972 (paragraph (a) formerly R. 4:10-3); paragraph (c) amended July 21, 1980 to be effective September 8, 1980; paragraphs (b) and (e) amended July 13, 1994 to be effective September 1, 1994; paragraph (c) amended and paragraph (f) added June 28, 1996 to be effective September 1, 1996. 4:14-3.01 Bochet s Practice Tips to Rule 4:14-3 z Strategic Point: N.J. Ct. R. 4:14-3(e) is infrequently used, although it should be considered in circumstances where the deponent will offer only minimal factual testimony. t Warning: Counsel should make an application under N.J. Ct. R. 4:14-4 if confronted with a violation of the prohibition on consultation with the deponent. This notifies the court that sanctions may be appropriate. s Timing: Although N.J. Ct. R. 4:14-3(d) requires that depositions continue day-to-day until completion, common practice is for counsel to agree to adjourn at the end of the day and reschedule the continuation for another time. Counsel should consult in advance as to the anticipated time needed for the deposition and whether or not it will proceed on consecutive days so that schedules can be accommodated. Disputes may be raised for judicial determination pursuant to N.J. Ct. R. 4:14-4. Exception: Objections during a videotaped deposition are not reserved for trial. They must be raised pursuant to N.J. Ct. R. 4:14-9(f). Part IV 4:14-3.02 Bochet s Annotations to Rule 4:14-3 Wolfe v. Malberg, 334 N.J. Super. 630, 760 A.2d 812 (App. Div. 2000). During depositions in this medical malpractice case, plaintiff s attorney repeatedly violated N.J. Ct. R 4:14-3(c) by improperly objecting to questions posed to his expert. The trial court assessed substantial financial sanctions and dismissed the plaintiff s case. The Appellate Division reversed, holding that these drastic sanctions were inappropriate. In re PSE&G Shareholder Litig., 320 N.J. Super. 112, 118, 726 A.2d 994 (Ch. Div. 1998). Witnesses met with counsel for discussions during breaks in their depositions. This situation had been addressed with varying results in federal courts, but here, the Chancery determined that the propriety of a deponent s consultation with counsel during breaks in a deposition should be determined on a case by case basis. The court found here that discussions with counsel during breaks in the course of a day of testimony are improper under N.J. Ct. R 4:14-3 but did allow consultation overnight. For additional cases, see N.J. Ct. R. 4:14-3 at www.lexis.com.

0028 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:00 2006 4:14-4.01 DISCOVERY 116 4:14-4 Motion or application to terminate or limit examination or for sanctions At any time during the taking of the deposition, on formal motion or telephone application to the court of a party or of the deponent and upon a showing that the examination or any part thereof is being conducted or defended in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party, or in violation of R. 4:14-3(c) or (f), the court may order the person conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in R. 4:10-3. If the order made terminates the examination, it shall be resumed thereafter only upon further order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion or telephone application for an order. The provisions of R. 4:23-1(c) shall apply to the award of expenses incurred in making or defending against the motion or telephone application. Note: Source R.R. 4:20-4. Amended July 14, 1972 to be effective September 5, 1972; amended June 28, 1996 to be effective September 1, 1996. 4:14-4.01 Bochet s Practice Tips to Rule 4:14-4 z Strategic Point: The rule addresses unreasonable conduct, including that prohibited in N.J. Ct. R. 4:14-3(c) (improper objections) and N.J. Ct. R. 4:14-3(f) (consultation with the deponent). Counsel engaging in prohibited conduct may be exposed to sanctions pursuant to N.J. Ct. R. 4:23-1(c), including the attorneys fees and costs incurred in making or defending a motion to terminate or limit the deposition. 4:14-4.02 Bochet s Annotations to Rule 4:14-4 K.S. v. ABC Prof l Corp., 330 N.J. Super. 288, 749 A.2d 425 (App. Div. 2000). During depositions taken in the course of a sexual harassment suit against a law firm, plaintiff sought to question firm members as to their own relationships and affairs with fellow employees. Defendants sought a protective order, which was denied by the trial court. The Appellate Division reversed, holding that the questioning was not relevant to proof of the charges actually made... [the] effect, if not [the] purpose, is to embarrass and humiliate. For additional cases, see N.J. Ct. R. 4:14-4 at www.lexis.com.

0029 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:00 2006 117 NJ COURT RULES 4:14-5.02 4:14-5 Submission to witness; changes; signing If the officer at the taking of the deposition is a certified shorthand reporter, the witness shall not sign the deposition. If the officer is not a certified shorthand reporter, then unless reading and signing of the deposition are waived by stipulation of the parties, the officer shall request the deponent to appear at a stated time for the purpose of reading and signing it. At that time or at such later time as the officer and witness agree upon, the deposition shall be submitted to the witness for examination and shall be read to or by the witness, and any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness. If the witness fails to appear at the time stated or if the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the witness failure or refusal to sign, together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under R. 4:16-4(d) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. Note: Source R.R. 4:20-5. Amended July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994. Part IV 4:14-5.01 Bochet s Practice Tips to Rule 4:14-5 Exception: N.J. Ct. R. 4:14-5, requiring a deponent to review and sign the deposition transcript if it was not recorded by a certified shorthand reporter, will become moot on January 11, 2007 when a statute becomes effective requiring all deposition officers to be certified. NJS 45:15B-9. 4:14-5.02 Bochet s Annotations to Rule 4:14-5 Beckwith v. Bethlehem Steel Corp., 185 N.J. Super. 50, 57, 447 A.2d 207 (Law Div. 1982) (administration of oath is critical factor on issue of trustworthiness of proposed evidence). For additional cases, see N.J. Ct. R. 4:14-5 at www.lexis.com.

0030 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:00 2006 4:14-6.01 DISCOVERY 118 4:14-6 Certification and filing by officer; exhibits; copies (a) Certification and Filing. The officer shall certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony. The officer shall then promptly file with the deputy clerk of the Superior Court in the county of venue a statement captioned in the cause setting forth the date on which the deposition was taken, the name and address of the witness, and the name and address of the reporter from whom a transcript of the deposition may be obtained by payment of the prescribed fee. The reporter shall furnish the party taking the deposition with the original and a copy thereof. Depositions shall not be filed unless the court so orders on its or a party s motion. The original deposition shall, however, be made available to the judge to whom any proceeding in the matter has been assigned for disposition at the time of the hearing or as the judge may otherwise request. Filed depositions shall be returned by the court to the party taking the deposition after the termination of the action. A videotaped deposition shall be sealed and filed in accordance with R. 4:14-9(d). (b) Documentary Evidence. Documentary evidence exhibited before the officer or exhibits proved or identified by the witness, may be annexed to and returned with the deposition; or the officer shall, if requested by the party producing the documentary evidence or exhibit, mark it as an exhibit in the action, and return it to the party offering the same, and the same shall be received in evidence as if annexed to and returned with the deposition. (c) Copies. The party taking the deposition shall bear the cost thereof and of promptly furnishing a copy of the transcript to the witness deposed, if an adverse party, and if not, to any adverse party. The copy so furnished shall be made available to all other parties for their inspection and copying. Copies of videotaped depositions shall be made and furnished in accordance with R. 4:14-9(d). Note: Source R.R. 4:20-6(a) (b) (c). Paragraph (c) amended July 14, 1972 to be effective September 5, 1972; paragraphs (a) (c) amended July 21, 1980 to be effective September 8, 1980; paragraph (a) amended July 15, 1982 to be effective September 13, 1982; paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended June 28, 1996 to be effective September 1, 1996. 4:14-6.01 Bochet s Practice Tips to Rule 4:14-6 z Strategic Point: Attachment of documentary evidence to the transcript is not

0031 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:00 2006 119 NJ COURT RULES 4:14-6.02 mandatory under N.J. Ct. R. 4:14-6(b). The best practice is to retain the original exhibit and have copies affixed to the transcript for easy reference. Exception: N.J. Ct. R. 4:14-6(a) refers to the sealing and filing of videotaped depositions, pursuant to N.J. Ct. R. 4:14-9(d). This is no longer required under N.J. Ct. R. 4:19-9(d), which states that the tapes are simply delivered to the party arranging the deposition. 4:14-6.02 Bochet s Annotations to Rule 4:14-6 Rizman v. Gourvitz, 321 N.J. Super. 1, 728 A.2d 229 (App. Div. 1998). A court reporting firm sued a lawyer for the cost of the transcript of the deposition of his client. The deposition was taken as part of an action in which the client was not a party. The attorney contended he was entitled to a transcript under N.J. Ct. R. 4:14-6(c). Reversing the trial judge, the Appellative Division held that the rule does not apply to witnesses who are not parties. Further, the attorney ordering the transcript undertakes to pay for it and may not, except in the clearest case, avoid the payment obligation by raising the responsibilities of others, whether founded on the rule or another source. Wolfe v. Malberg, 344 N.J. Super. 630, 639 (App. Div. 2000) (dismissal not proper sanction for attorney s misconduct at deposition). Part IV For additional cases, see N.J. Ct. R. 4:14-6 at www.lexis.com. 4:14-7 Subpoena for taking depositions (a) Form; Contents; Scope. The attendance of a witness at the taking of depositions may be compelled by subpoena, issued and served as prescribed by R. 1:9 insofar as applicable, and subject to the protective provisions of R. 1:9-2 and R. 4:10-3. The subpoena may command the person to whom it is directed to produce designated books, papers, documents or other objects which constitute or contain evidence relating to all matters within the scope of examination permitted by R. 4:10-2. (b) Time and Place of Examination by Subpoena; Witness Expenses. (1) Fact Witnesses. A resident of this State subpoenaed for the taking of a deposition may be required to attend an examination only at a reasonably convenient time and only (A) in the county of this State in which he or she resides, is employed or transacts business in person; or (B) at a location in New Jersey within 20 miles from the witness s residence or place of business; or (C) at such other convenient place fixed by court order. A nonresident of this State subpoenaed within this State may be required to attend only at a reasonably convenient time and only

0032 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:00 2006 4:14-7.01 DISCOVERY 120 in the county in which he or she is served, at a place within this State not more than 40 miles from the place of service, or at such other convenient place fixed by court order. The party subpoenaing a witness, other than one subject to deposition on notice, shall reimburse the witness for the out-of-pocket expenses and loss of pay, if any, incurred in attending at the taking of depositions. (2) Expert Witnesses and Treating Physicians. If the expert or treating physician resides or works in New Jersey, but the deposition is taken at a place other than the witness residence or place of business, the party taking the deposition shall pay for the witness travel time and expenses, unless otherwise ordered by the court. If the expert or treating physician does not reside or work in New Jersey, the proponent of the witness shall either (A) produce the witness, at the proponent s expense, in the county in which the action is pending or at such other place in New Jersey upon which all parties shall agree, or (B) pay all reasonable travel and lodging expenses incurred by all parties in attending the witness out-of-state deposition, unless otherwise ordered by the court. (c) Notice; Limitations. A subpoena commanding a person to produce evidence for discovery purposes may be issued only to a person whose attendance at a designated time and place for the taking of a deposition is simultaneously compelled. The subpoena shall state that the subpoenaed evidence shall not be produced or released until the date specified for the taking of the deposition and that if the deponent is notified that a motion to quash the subpoena has been filed, the deponent shall not produce or release the subpoenaed evidence until ordered to do so by the court or the release is consented to by all parties to the action. The subpoena shall be simultaneously served no less than 10 days prior to the date therein scheduled on the witness and on all parties, who shall have the right at the taking of the deposition to inspect and copy the subpoenaed evidence produced. If evidence is produced by a subpoenaed witness who does not attend the taking of the deposition, the parties to whom the evidence is so furnished shall forthwith provide notice to all other parties of the receipt thereof and of its specific nature and contents, and shall make it available to all other parties for inspection and copying. Note: Source R.R. 4:20-1 (last sentence), 4:46-4(a)(b). Paragraphs (a) and (b) amended July 14, 1972 to be effective September 5, 1972; paragraph (c) adopted November 5, 1986 to be effective January 1, 1987; paragraph (b) recaptioned paragraph (b)(1) and amended, paragraph (b)(2) adopted and paragraph (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b)(1) amended July 27, 2006 to be effective September 1, 2006. 4:14-7.01 Bochet s Practice Tips to Rule 4:14-7 z Strategic Point: Because the proponent of an out-of-state witness is responsible for

0033 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:00 2006 121 NJ COURT RULES 4:14-7.02 the witness s reasonable costs in attending a deposition, counsel should weigh those costs in determining the best way to conduct a deposition, including video conferencing as an alternative. t Warning: Absent a court order, non-party witnesses residing in New Jersey cannot be compelled by subpoena to appear for depositions outside of the county where they live, work or do business, or at any location in excess of 20 miles from their homes. 4:14-7.02 Bochet s Annotations to Rule 4:14-7 Haynes v. Ethicon, 315 N.J. Super. 338, 718 A.2d 262 (Law Div. 1998). Defendants sought depositions of two of plaintiff s medical experts, both of whom were located in Massachusetts. Plaintiff moved to have the witnesses deposed by video conferencing. The court granted the motion, holding that the experts availability by video conferencing was equivalent to producing them pursuant to N.J. Ct. R 4:14-7(b)(2). Mc Donough, Murray & Korn, P.A., v. Breuninger, 179 N.J. Super. 574, 432 A.2d 964 (Dist. Ct. 1980). In another lawsuit, plaintiff law firm took defendant attorney s deposition, after obtaining a court order for same. Defendant submitted a bill for her time and for that of the attorney who appeared with her. Plaintiff protested but a bookkeeper inadvertently paid the bill. Plaintiff firm sued for reimbursement, claiming defendant appeared at the deposition as an authorized agent of a party to the suit and that she therefore was not entitled to reimbursement. The court found that the defendant attorney was not an authorized agent under N.J. Ct. R. 4:14-7(b) and was entitled to be paid for her lost earnings. The court found no entitlement to attorneys fees for her lawyer s time. For additional cases, see N.J. Ct. R. 4:14-7 at www.lexis.com. Part IV 4:14-8 Failure to attend or serve subpoena; expenses If the party giving notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, or if the party giving the notice fails to serve a subpoena upon a witness who because of such failure does not attend and another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred as a result of attendance either by the attending party or that party s attorney, including reasonable attorney s fees. Note: Source R.R. 4:20-7(a) (b). Amended July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994.

0034 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:00 2006 4:14-8.01 DISCOVERY 122 4:14-8.01 Bochet s Practice Tips to Rule 4:14-8 t Warning: Counsel should schedule depositions with careful attention, as the failure of the noticing party to appear permits the court to require that party to pay all reasonable fees associated with the witness s (or the witness s attorney s) attendance at the scheduled deposition. 4:14-9 Videotaped depositions Videotaped depositions may be taken for discovery purposes or for use at trial in accordance with the applicable provisions of these discovery rules subject to the following further requirements and conditions: (a) Time for Taking Videotaped Depositions. The provisions of R. 4:14-1 shall apply to videotaped depositions except that such a deposition of a treating physician or expert witness which is intended for use in lieu of trial testimony shall not be noticed for taking until 30 days after a written report of that witness has been furnished to all parties. Any party desiring to take a discovery deposition of that witness shall do so within such 30-day period. (b) Notice. A party intending to videotape a deposition shall serve the notice required by R. 4:14-2(a) not less than 10 days prior to the date therein fixed for the taking of the deposition. The notice shall further state that the deposition is to be videotaped. (c) Transcript. The videotaping of a deposition shall not be deemed to except it from the general requirement of stenographic recording and typewritten transcript. Prior to the swearing of the witness by the officer, the name, address and firm of the videotape operator shall be stated on the record. (d) Filing, Copies. Immediately following the conclusion of the videotaped deposition, the videotape operator shall deliver the tape to the party taking the deposition who shall take physical custody thereof and arrange for the making of one copy. The party taking the deposition shall then furnish a copy of the tape to an adverse party who shall make it available for copying and inspection to all other parties. (e) Use. Videotaped depositions may be used at trial in accordance with R. 4:16-1. In addition, a videotaped deposition of a treating physician or expert witness, which has been taken in accordance with these rules, may be used at trial in lieu of testimony whether or not such witness is available to testify and provided further that the party who has taken the

0035 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:00 2006 123 NJ COURT RULES 4:14-9.01 deposition has produced the witness for further videotaped deposition necessitated by discovery completed following the original videotaped deposition or for other good cause. Disputes among parties regarding the recall of a treating physician or expert witness shall be resolved by motion, which shall be made as early as practicable before trial. The taking of a videotaped deposition of a treating physician or expert witness shall not preclude the party taking the deposition from producing the witness at trial. (f) Objections. Where a videotaped deposition is taken for use at trial in lieu of testimony, all evidential objections shall, to the extent practicable, be made during the course of the deposition. Each party making such objection shall, within 45 days following the completion of the deposition, file a motion for rulings thereon and all such motions shall be consolidated for hearing. The court may, however, on its own motion or the motion of a party, abbreviate the time period if the deposition of a treating physician or expert witness is taken pursuant to R. 4:36-3(c) or for other good cause. A copy of the tape shall be edited in accordance with said rulings and the copy so edited shall be made available for copying to all other parties. (g) Cost of Videotaped Depositions. All out-of-pocket expenses incurred in connection with a videotaped deposition, including the making of copies herein required and the editing of tapes, shall be borne, in the first instance, by the party taking the deposition. The cost of court presentation of the deposition shall be borne, in the first instance, by the party offering the deposition. (h) Record on Appeal. Where a videotaped deposition is used at trial, a typewritten transcript thereof shall be included in the record on appeal. The videotape itself shall not constitute part of the record on appeal except on motion for good cause shown. Note: Adopted July 21, 1980 to be effective September 8, 1980; paragraph (e) amended June 29, 1990 to be effective September 4, 1990; paragraph (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (d) amended June 28, 1996 to be effective September 1, 1996; introductory text and paragraphs (b), (d), and (f) amended July 28, 2004 to be effective September 1, 2004. Part IV 4:14-9.01 Bochet s Practice Tips to Rule 4:14-9 z Strategic Point: Video taping depositions has become a common practice with the implementation of N.J Ct. R. 4:36-3. Enacted to meet the goal of trial date certainty, N.J. Ct. R. 4:36-3(c) states that absent exceptional circumstances, a trial date will be adjourned for the purpose of accommodating a particular expert witness only one time. Otherwise, the witness must be made available or a videotaped deposition must be taken in lieu of trial testimony. z Strategic Point: Pursuant to N.J. Ct. R. 4:14-9(f), videotaped testimony must be edited

0036 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:01 2006 4:14-9.02 DISCOVERY 124 to reflect the court s ruling on any objections made during the course of the deposition. Counsel should avoid over-editing as the choppy appearance that results is distracting to the judge and jury. Effort should be made to pose questions in a format least likely to provoke objections. Counsel for all parties involved may agree to stop the taping upon objection, so that the grounds can be placed on the record with the court reporter without cluttering the videotape. z Strategic Point: When conducting and using videotaped depositions in lieu of trial testimony, counsel should use care to ensure the testimony is presented in the most effective manner. Counsel should be aware that the dynamic of live testimony does not carry over to videotaped presentations. Questions should be posed to keep answers concise and sharp. Presentation of the expert s credentials should be kept to the minimum necessary to qualify the expert so as not to lose the jury s attention. Counsel should intersperse video testimony with live testimony where possible, keeping in mind that the typical attention span runs approximately one hour. t Warning: Though N.J. Ct. R. 4:14-9(f) requires that counsel file a motion for a ruling on objections that arise during the course of a deposition to be used in lieu of trial testimony within 45 days, these videotaped depositions are often conducted shortly before trial. This is particularly true when conducted pursuant to N.J. Ct. R. 4:36-3(c) (requiring videotaped testimony when expert witness is unable to attend scheduled trial date if adjournment has previously been granted for that reason), in which case counsel should place the basis for objections in the Pretrial Information Exchange materials required by N.J. Ct. R. 4:25-7. See N.J. Ct. R., Appx. XXIII, Pretrial Information Exchange. 4:14-9.02 Bochet s Annotations to Rule 4:14-9 Genovese v. N.J. Transit Rail Operations, 234 N.J. Super. 375, 560 A.2d 1272 (App. Div. 1989). Defendant had plaintiff examined by a defense neuropsychiatrist. They then arranged a videotaped deposition of the expert, which turned out to be a disappointment. At trial, plaintiff successfully sought to have the doctor s videotaped testimony as part of his case, arguing the testimony should be considered the same as live testimony at trial. The Appellate Division reversed, finding that use of videotaping under N.J. Ct. R. 4:14-9(e) would be discouraged if the adverse party were permitted to use the testimony for its own purposes. The court made a policy ruling that a videotaped deposition should not be substantively useable by an adversary over objection. Spaulding v. Hussain, 229 N.J. Super. 430, 551 A.2d 1022 (App. Div. 1988). Plaintiff was injured in an accident in which he fell and was treated by the defendant neurologist. Plaintiff pursued litigation to recover damages for his injury. The defendant refused to testify in that action, leaving plaintiff little choice but to accept an inadequate settlement. Plaintiff then filed this action against the physician to recover the reasonable value of his prior case. Affirming the trial court, the Appellate Division held that the defendant treating physician was obliged to render litigation assistance, including testimony, particularly when promised. The court pointed out the availability of videotaping to minimize inconvenience. For additional cases, see N.J. Ct. R. 4:14-9 at www.lexis.com.

0037 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:01 2006 125 NJ COURT RULES 4:15-1.01 RULE 4:15 DEPOSITIONS UPON WRITTEN QUESTIONS 4:15-1 Serving questions; notice After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in R. 4:14-7. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating: (a) The name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify that person or the particular class or group to which that person belongs; and (b) The name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of R. 4:14-2(c). Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time. Note: Source R.R. 4:21-1. Former rule deleted and new R. 4:15-1 adopted July 14, 1972 to be effective September 5, 1972; paragraph (a) amended July 13, 1994 to be effective September 1, 1994. Part IV 4:15-1.01 Bochet s Practice Tips to Rule 4:15-1 z Strategic Point: Depositions upon written questions are rarely used. N.J. Ct. R. 4:15-1 permits service of initial questions and then cross, redirect and recross questions. Between the service of initial questions and the service of recross questions, as many as 50 days

0038 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:01 2006 4:15-1.02 DISCOVERY 126 may permissibly elapse. The inclusion of rebuttal questioning suggests either the possibility of four appearances by the witness or questions for cross-examination being submitted before answers are given to the direct questions. The procedure prescribed is neither desirable nor practical. Counsel seeking to take depositions by written questions should agree upon guidelines with adversary counsel or seek court intervention to establish more manageable procedures. s Timing: Though notice is required for a deposition upon written questions, N.J. Ct. R. 4:15-1 does not specify how far in advance notice must be served. Because this proceeding is a form of a deposition, Counsel is well-advised to serve at least 10 days notice, pursuant to N.J. Ct. R. 4:14-2(a), governing notices of examination. 4:15-1.02 Bochet s Annotations to Rule 4:15-1 Hyland v. Smollok, 137 N.J. Super. 456, 349 A.2d 541 (App. Div. 1975). The office of the New Jersey Attorney General brought this action to remove the defendant school official from office due to his failure to answer questions before a grand jury. Defendant responded that the statute authorizing his removal was being selectively enforced against him. He sought depositions of the Attorney General, the Director of the Division of Criminal Justice and the Deputy Attorney General. The Appellate Division reversed the trial judge s denial of a protective order to prevent the depositions. The court held that, despite the provisions of N.J. Ct. R 4:15-1 and the overall liberality of discovery, high-level officials should not be subject to depositions unless they are directly involved in the transaction or injustice may occur. For additional cases, see N.J. Ct. R. 4:15-1 at www.lexis.com. 4:15-2 Officer to take responses and prepare record A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly in the manner provided by R. 4:14-3, 4:14-5 and 4:14-6 to take the testimony of the witness in response to the questions and to prepare, certify and file the deposition, attaching thereto the copy of the notice and the questions received by him. Note: Source R.R. 4:21-2. Amended July 14, 1972 to be effective September 5, 1972. 4:15-2.01 Bochet s Practice Tips to Rule 4:15-2 t Warning: Although N.J. Ct. R. 4:15-2 does not provide a cross-reference, counsel

0039 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:01 2006 127 NJ COURT RULES should ensure that the officer receiving the questions and answers falls within the requirements of N.J. Ct. R. 4:12 specifying persons qualified to take a deposition. 4:15-3 Orders for the Protection of Parties and Deponents and the Exclusion of Illegal Evidence [Deleted] Note: Source-R.R. 4:21-3. Deleted (see R. 4:10-3) July 14, 1972 to be effective September 5, 1972. Part IV

0040 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:01 2006 DISCOVERY 128 RULE 4:16 USE OF DEPOSITIONS; OBJECTIONS; EFFECT; ERRORS AND IRREGULARITIES 4:16-1 Use of depositions At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used in accordance with any of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Rules of Evidence. (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing or authorized agent, or a person designated under R. 4:14-2(c) or R. 4:15-1 to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose against the deponent or the corporation, partnership, association or agency. (c) Except as otherwise provided by R. 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be obtained because of death or other inability to attend or testify, such as age, illness, infirmity or imprisonment, or is out of this state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness s attendance by subpoena, provided, however, that the absence of the witness was not procured or caused by the offering party. The deposition of an absent but not unavailable witness may also be so used if, upon application and notice, the court finds that such exceptional circumstances exist as to make such use desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. (d) If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce any other part

0041 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:01 2006 129 NJ COURT RULES 4:16-1.01 which ought in fairness be considered with the part introduced, and any party may offer any other parts. Substitution of parties pursuant to R. 4:34 does not affect the right to use depositions previously taken; and, when an action has been brought in any court of the United States or of any state and another action involving the same subject matter is afterward maintained between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor, provided that the officer s statement required by R. 4:14-6(a) was duly filed. A deposition previously taken may also be used as permitted by the Rules of Evidence. Note: Source R.R. 4:16-4. Former rule deleted (see R. 4:16-4(a)) and new R. 4:16-1 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-4); paragraph (c) amended July 21, 1980 to be effective September 8, 1980; paragraphs (a) and (c) and text amended July 26, 1984 to be effective September 10, 1984; paragraphs (c) and (d) amended July 13, 1994 to be effective September 1, 1994. Part IV 4:16-1.01 Bochet s Practice Tips to Rule 4:16-1 z Strategic Point: Depositions may be used in cross-examination if the deposition testimony differs from the testimony of a witness at trial. See N.J.R.E. 607. Confronting a witness with prior testimony is effective if the inconsistency is clear and material. Counsel should avoid confrontation when the prior testimony is ambiguous or trivial because any insinuation of untruthfulness can backfire if the contradiction is not readily apparent. s Timing: Proposed use of deposition testimony at trial in a party s case in chief must be listed on the Pretrial Information Exchange memorandum. N.J. Ct. R., Appx. XXIII, Pretrial Information Exchange. Objections to proposed submissions are also listed on the memorandum. The memorandum is to be served at least seven days before trial. N.J. Ct. R. 4:25-7(b). Exception: There are limitations on the use of deposition testimony, other than by an adverse party. These primarily involve the availability of the deponent. N.J.R.E. 804. The limitations do not apply to de bene esse videotaped depositions. N.J. Ct. R. 4:14-9(e). Exception: Testimony of officers, directors, and authorized or managing agents may be used against corporations or similar entities as well as others designated under N.J. Ct. R. 4:14-2(c). The testimony of other employees cannot be assumed to be binding. The focus for admissibility of the testimony of an employee not designated under N.J. Ct. R. 4:14-2(c) is on the role of the witness in the transaction or occurrence, as well as his or her authority within the entity.

0042 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:01 2006 4:16-1.02 DISCOVERY 130 4:16-1.02 Bochet s Annotations to Rule 4:16-1 Williams v. Hodes, 363 N.J. Super. 600, 834 A.2d 415 (App. Div. 2003). The plaintiff in this auto accident case was in the first car in line in a four-vehicle chain collision. She sued only the driver of the fourth car in line. Defendant then filed a third party complaint against the drivers of the second and third cars. Prior to trial, plaintiff served notices in lieu of subpoena upon the third party defendants. On the first day of trial, the third party complaint was voluntarily dismissed. Plaintiff then unsuccessfully tried to subpoena the two third party defendants but was not permitted to read from their depositions. This left a deficiency in plaintiff s proofs which resulted in a directed verdict in favor of defendant. The Appellate Division reversed. First, the notice in lieu of subpoena survived the dismissal and those parties were obliged to comply. Second, the plaintiff should have been permitted to read from the depositions under N.J. Ct. R 4:16-1(c), as they were unavailable despite plaintiff s diligent efforts. Finally, the situation presented exceptional circumstances sufficient to allow for reading the depositions. Avis Rent-A-Car v. Cooper, 273 N.J. Super. 198, 641 A.2d 570 (App. Div. 1994). Plaintiff sought to use the depositions of three witnesses taken via telephone as substantive evidence at trial. One deponent was an expert, the second was an employee manager and the third was an unrelated employee of Nissan Motor Corp. All resided outside of New Jersey. The trial court refused to allow use of all three. The Appellate Division reversed as to the Nissan witness, as he was outside of the state and his absence was not procured by the defendant. The court affirmed as to the employee manager, finding that plaintiff could produce him by simply paying for his travel costs and other expenses. It also affirmed the exclusion of the expert s testimony, pointing out that depositions of experts for trial are governed by N.J. Ct. R 4:14-9. Any other means of deposing an expert are excluded from N.J. Ct. R 4:16-1(c). Witter by Witter v. Leo, 269 N.J. Super. 380, 635 A.2d 580 (App. Div. 1994). Plaintiff brought a negligent supervision claim against defendant mother whose son threw a party in her absence at which minors were drinking alcoholic beverages. The infant plaintiff jumped from the roof of the defendant s house, after drinking at the party. The son was at college and the trial judge permitted the defendant to read his deposition as evidence and refused to charge an adverse inference from his not being produced as a witness by his mother. After a verdict in favor of the defendant mother, the Appellate Division reversed and remanded the case for a new trial. The court held that the son s absence was caused by the defendant and he was not unavailable as provided by N.J. Ct. R 4:16-1(c). The trial court should not have permitted admission of the son s deposition. Giannetti v. Fenwick, 166 N.J. Super. 491, 400 A.2d 103 (App. Div. 1979). An auto accident case resulted in a verdict and judgment in favor of defendant. The plaintiff appealed, arguing that defendant s deposition should not have been read to the jury. The Appellate Division disagreed, finding that the use of the deposition of an unavailable insured defendant falls within the exceptional circumstances set forth in N.J. Ct. R. 4:16-1(c). Bonnet v. Stewart, 68 N.J. 287, 299, 344 A.2d 321 (1975) (permitted adverse party to read into evidence portions of deposition taken of insurer s accounting department supervisor). Lopez v. House of Coffee, 332 N.J. Super. 364, 368, 753 A.2d 755 (Ch. Div. 2000) (party

0043 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:01 2006 131 NJ COURT RULES 4:16-2.01 witnesses should not be sequestered at depositions due to breadth of use of depositions at trial). Panasonic Indus. Co. v. Emerson Quiet Kool Corp., 269 N.J. Super. 502, 505, 635 A.2d 1024 (Law Div. 1993) ( managing or authorized agent under N.J. Ct. R. 4:16-1 determined by factors including whether interest of individual and principal align and role in transaction or event which is subject of suit). Guzzi v. Clarke, 252 N.J. Super. 361 (Law Div. 1991) (deposition of former party who is available is inadmissible). For additional cases, see N.J. Ct. R. 4:16-1 at www.lexis.com. Part IV 4:16-2 Objections to admissibility Subject to the provisions of R. 4:16-4(c), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. Note: Source R.R. 4:16-5. Former rule deleted (see R. 4:16-4(b)) and new R. 4:16-2 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-5). 4:16-2.01 Bochet s Practice Tips to Rule 4:16-2 t Warning: By providing an instance in which an objection to deposition testimony may be raised at trial, NJ. Ct. R. 4:16-2 provides an exception to N.J. Ct. R. 4:16-4(c)(2), which states that any objections that arise during a deposition must be raised at that time or they are deemed waived. s Timing: Objections should be listed in the Pretrial Information Exchange (N.J. Ct. R., Appx. XXIII), which counsel exchanges at least seven days before trial. N.J. Ct. R. 4:25-7(b).

0044 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:02 2006 4:16-3.01 DISCOVERY 132 4:16-3 Effect of taking or using deposition A person does not become a party s witness for any purpose merely because that party has taken that person s deposition. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party. Note: Source R.R. 4:16-6. Former rule deleted (see R. 4:16-4(c)) and new R. 4:16-3 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-6); amended July 13, 1994 to be effective September 1, 1994. 4:16-3.01 Bochet s Practice Tips to Rule 4:16-3 z Strategic Point: There are evidential restraints upon presentation of evidence to impeach a witness deemed a party s witness. See N.J.R.E. 607. This rule establishes that deposing a witness or introducing deposition testimony at trial does not restrict the party s ability to impeach that witness. 4:16-4 Effect of errors and irregularities in depositions (a) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless at least 3 days before the time fixed for examination, or within such time as the court fixes by order, written objection is served upon the party giving the notice. (b) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom or the person by whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (c) As to Taking of Deposition. (1) Objections Not Waived. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the

0045 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:02 2006 133 NJ COURT RULES 4:16-4.02 deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (2) Objections Waived. Except as otherwise provided by R. 4:14-3(c), errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented are waived unless timely objection thereto is made at the taking of the deposition. Objections to the form of written questions submitted under R. 4:15 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or redirect questions or, if the objection is as to recross questions, then within 5 days after service thereof. (d) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. Note: Source R.R. 4:22-1, 4:22-2, 4:22-3(a) (b) (c). Paragraph (d) amended July 14, 1972 to be effective September 5, 1972 (paragraphs (a) (b) (c) formerly R. 4:16-1, 4:16-2, 4:16-3); paragraph (c)(2) amended July 5, 2000 to be effective September 5, 2000. Part IV 4:16-4.01 Bochet s Practice Tips to Rule 4:16-4 s Timing: Objections that can be cured, such as objections to the form of a question, must be made at the time the objectionable conduct occurs. N.J. Ct. R. 4:16-4 permits correction of objectionable phrasing of a question or conduct of a party. Objectionable conduct occurs, for example, when the spouse of a deponent interrupts or contradicts the deponent. Counsel should obviate this conduct by cautioning the offending party or removing the party from the room. Failure to object at the time the conduct occurs restricts counsel s ability to complain later. If the conduct continues, counsel should resort to an application for a protective order (N.J. Ct. R. 4:10-3) or an application to terminate or limit the deposition. N.J. Ct. R. 4:14-4. 4:16-4.02 Bochet s Annotations to Rule 4:16-4 Greenberg v. Stanley, 30 N.J. 485, 153 A.2d 833 (1959). In an automobile accident case, the defendant drivers disputed whether one cut off the other, causing the car to leave the roadway and strike pedestrians on the sidewalk. Counsel for the party allegedly that struck the pedestrian persistently tried to confront the other driver with deposition testimony that unidentified persons at the scene had remarked the car had been cut off. The Supreme Court reversed the Appellate Division, pointing out that deposition testimony used under N.J. Ct. R 4:16-4 must be admissible under the rules of evidence. The defense counsel s

0046 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonllp: 1461: XPP-PROD Wed Dec 13 17:10:02 2006 4:16-4.02 DISCOVERY 134 repeated reference to inadmissible deposition testimony merited a new trial. State v. Freeman, 223 N.J. Super. 92, 113, 538 A.2d 371 (App. Div. 1988), certif. denied, 114 N.J. 525, 555 A.2d 637 (1989). In a criminal case, convicted defendant objected to admission into evidence of a videotaped deposition of a witness ruled unavailable to testify at trial. Defendant cited a number of irregularities, including failure to swear the witness and identify the videographer. Further there was no reporter present, and the tape was not sealed. Affirming the conviction, the Appellate Division ruled that the objections were not timely and should be deemed waived under N.J. Ct. R. 4:16-4(c)(2). For additional cases, see N.J. Ct. R. 4:16-4 at www.lexis.com.