The New Jersey State Bar Association submitted comments mostly in support of the recommendations of the Supreme Court Civil Practice Committee in its January 2024 Report. The recommendations include updates to the rules to formalize electronic service of motions and discovery, discovery issues generally, and arbitrations.
“The NJSBA recognizes the importance of ensuring our rules are clear, establish procedures that are fair to all parties, and, most importantly, advance the interests of and access to justice,” NJSBA President Timothy F. McGoughran said in his letter to the Administrative Office of the Courts.
Specifically, the Association commented:
R. 1:5-2 and R. 1:11-2: Manner of Service; Withdrawal or Substitution
The NJSBA supports the proposed amendments to R. 1:5-2, which addresses service by email of discovery demands and motions – but not original process. The proposed amendment formalizes the general practice post-COVID of electronic service of motions and discovery demands. Counsel would be permitted to serve one or all of the email addresses designated in eCourts, which eliminates the potential for emails being sent to a general mailbox to help ensure the email reaches the intended recipient.
The proposed amendment would also limit the rule amendment for service only between attorneys to protect self-represented litigants who may otherwise have limited access to technology.
Regarding withdrawal or substitution, the Committee proposed amendments to address two issues. Rule 1:11-2 is proposed to be amended to address missing contact information for non-lawyer parties where an attorney is withdrawing or seeking to be relieved from a matter and a non-lawyer is being substituted into the case. The proposed amendments would require the full name of the party or parties who will be self-represented, the current mailing address(es), and telephone numbers to be included with an application to be relieved as counsel.
The second proposed amendment would codify a prior rule relaxation that established confidentiality standards for certain landlord-tenant actions arising out of non-payment or habitually late payment of rent owed during the pandemic. This amendment addresses legislation that became effective Dec. 1, 2021.
The NJSBA pointed out that these proposals “reflect practical, reasonable amendments to Court Rules, will help to streamline communications among counsel, and will provide attorneys with critically needed information in pro se matters.”
R. 2:11-4: Attorney’s Fees on Appeal
The Association suggest language to expand the scope of this proposed amendment, which provides a mechanism by which a party who prevailed on its appeal but is not yet a “prevailing party” is entitled to attorney’s fees and costs under a relevant fee-shifting statute. The amendment directs the party to apply for fees and costs after the remanded matter ends in the trial court.
The NJSBA suggest that in section (b) where the proposed amendment directs the timing and jurisdiction of a motion for attorney’s fees, that it be amended to read that if a motion for reconsideration is filed with any appellate court, a motion for fees shall be filed 10 days after the ruling on the motion for reconsideration by the last appellate court to rule on a reconsideration motion.
R. 4:14-2: Notice of Examination; General Requirements
The Association urges clarification to the proposed amendments, which address issues that arise where the incorrect individual appears for a deposition as a corporate designee and does not possess relevant information. The NJSBA points out that the amendments are meant to reflect Federal Rule 30(b)(6) regarding organization depositions regarding the ability of parties to confer with non-party organizations about those individuals who will appear at a deposition on behalf of the organization to ensure that they possess information about the matters that will be examined.
The suggested change to the proposal would be to move reference to “conferring in good faith about the matters for examination” from subparagraph (d), which addresses “production of things” to subparagraph (c) regarding the examination of a witness.
“This language also reinforces the intent of the proposed changes that all parties have an opportunity to participate in any pre-deposition discussions with a non-party about the scope of the non-party’s deposition in order to prevent any biased manipulation of the testimony,” the NJSBA said.
R. 4:19-1, -2: Physical and Mental Examination of Persons and Observation and Recording of Physical and Mental Examination of Persons
The Association recommends additional revisions to these proposed amendments, which clarifies the procedure regarding who may attend a defense independent medical examination (IME) as well as whether and how such examinations may be recorded.
The amendments suggested by the Association include eliminating a reference to matters pending solely in the Law Division, Civil Part to ensure the provisions apply to any matter to which the Part IV Rules apply and not just civil matters filed in the Law Division; removing the reference to “business” address to account for single individuals acting as an observer not affiliated with a business; clarifying that a curriculum vitae is only required from individuals who will serve as an expert witness; and clarifying the reference to the parties in last sentence of the Rule to be the party serving notice of the exam.
R. 4:21-5 and -6: Arbitration Award, Entry of Judgment De Novo
The Association suggests a minor edit to the proposed amendment to these rules, which clarifies that the uploading of an arbitration award into the court’s electronic filing system (eCourts) constitutes filing and service by the court of the award under the Rule.
“To avoid confusion about when an arbitrator’s report is actually filed, the NJSBA recommends changing the first reference to the term “file” to “transmit” so that it is clear the award is only transmitted from arbitrator to civil division manager, not filed,” the NJSBA said.
R. 4:22-1: Request for Admission
The NJSBA supports the proposed amendments to this rule, which would permit requests for admissions to extend to opinions as well as facts. The amendments are consistent with previous comments submitted by the NJSBA on this rule.
R. 6.1-2, 6:3-4 and 6:4-3: Cognizability; Summary Actions for Possession of Premises; Interrogatories; Admission; Production
The NJSBA opposes these proposed amendments that seek to limit the available relief in an ejectment action to possession of the premises only and requiring a separate action to be filed for damages. Among the concerns raised is that the statutes that govern these actions permit both possession and monetary actions to be awarded at the same time in a summary action.
The Association argues that requiring a separate action to recover monetary damages goes against judicial economy. Furthermore, in trespasser/squatter situations, the defendant is oftentimes unknown and therefore it would be difficult to file a subsequent action for damages if the plaintiff does not know the party’s identity and cannot properly serve them. The proposed amendments give “a tremendous advantage to the trespasser/squatter and a landlord who illegally evicts” by placing additional hurdles on the plaintiff, rather than the wrongdoer.
Finally, the Association points out that unlike landlord-tenant actions, there is no separate docket for ejectment actions and therefore both the possession action and the action for money damages would be designated as DC Dockets. This could lead to confusion for everyone involved.
A full copy of the 2024 Report of the Supreme Court Civil Practice Committee may be found here. A copy of NJSBA’s comments may be found here.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.