I also agree with Robert - no way around a subpoena. I can say that in all the time I've been doing this, the number of people who indicated they would prefer to attend a deposition rather than just giving the documents is exactly zero.
Just make sure you're dotting all your i's and crossing all t's on the subpoena. You can't say "send the documents instead of appearing" unless you also make sure you make clear that nothing is to be released prior to the return date in the subpoena. If there's any questions about what a proper subpoena looks like, get some samples. Also, be sure you have authority to issue it -- if it's postjudgment, you either need a specific order (obtained via a motion) or you need there to be a plenary hearing scheduled. Note that at least one trial judge held that the simple existence of a postjudgment hearing doesn't authorize a subpoena, but I respectfully disagree and am in the appellate division on that. The background law on it is below. We'll see what the App Div says... my understanding remains that the scheduling of a postjudgment hearing (not just the filing of a motion) does grant subpoena authority in the absence of an order limiting discovery.
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David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
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A. The Trial Court Erred in Holding That the Issuance of an Order for a Postjudgment Plenary Hearing Does Not Authorize the Issuance of Deposition Subpoenas.
The trial court quashed subpoenas issued by plaintiff, holding that they "were not authorized" (Pa 157). In so holding, the court relied on Welch v. Welch, 401 N.J. Super. 438, 447-48 (Ch. Div. 2008) .
In Welch, an attorney filed a postjudgment motion and simultaneously served a deposition subpoena. Id. at 441. No hearing had been ordered and no court proceeding was pending. The court quashed the subpoenas and issued sanctions, noting that, when the subpoenas were served, counsel "was aware that there was no plenary hearing pending at which testimony could be offered, as he requested in his motion that the court order a plenary hearing..." Id. at 443.
Here, a plenary hearing had been ordered and the court explicitly authorized depositions (Pa 153 at 4(c)). Plaintiff therefore was vested with the authority to issue deposition subpoenas pursuant to Rule 4:14-7(c). This, the only court rule addressing depositions, outlines the parameters of discovery that may accompany a deposition. A deposition subpoena "may command the person to whom it is directed to produce designated books, papers, documents or other objects..."
Although the court denied both parties' requests for oral argument as to this crucial motion, it permitted argument as to plaintiff's subsequent application for reconsideration. The court held that "Welch says that in a post judgment discovery you need approval of the Court. And, yes, it's pointed out that in Welch there may not have been a pending matter. But the point of Welch was saying you needed approval of the Court because in this case there already was an order that had limited discovery and that was the July 3rd order that said this is what you serve. So Welch was not overlooked and Welch was not the dispositive case to say look, you're misapplying Welch (6T 19:14 to 19:23).
Welch opens by stating that it is intended to address "the vexing and recurring problem of unauthorized discovery [and the issuance of subpoenas" ] without prior court authorization and in the absence of a pending trial or plenary hearing." Id. at 438 (emphasis added). The July 3 order did not "limit[] discovery" (6T 19:19 to 19:20), it affirmed the right to conduct depositions.
Here, counsel did not rely solely on the case law and rule as to this issue -- the court's order explicitly authorized depositions (Pa 153 at 4(c)). See, e.g., Hirl v. Bank of Am., N.A., 401N.J.Super. 573, 581, 952 A.2d 479 (App.Div.2008) ("A discovery subpoena may be issued only in connection with a scheduled deposition of the subpoenaed person...."). See also, https://scholar.google.com/scholar_case?case=10285654930180844196 ("Cabrera was not entitled to subpoena the notary until such time as a plenary hearing was ordered.", emphasis supplied), Croghan v. Croghan, No. A-2389-11T4 & A-5590-11T4 https://scholar.google.com/scholar_case?case=8656318502682836214 (Decided June 13, 2013).
Factual determinations by a trial court are entitled to substantial deference from the Appellate Division. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). No such deference is appropriate as to legal conclusions that follow from those facts. Manalapan Realty v. Township Comm., 140 N.J. 366, 378 (1995).