Grazie, below is an excerpt from a recent brief where I tried to quash such a subpoena.
Tom
Thomas R. King, Esq
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Plaintiff has served a subpoena on my client's employer for information regarding, inter alia, his salary, and employment. See, Subpoena at Ex A of Attorney Certification.
Discovery in Post-Divorce Matters
Plaintiff's subpoena was issued without permission of the Court, and as such, it is void ab initio. The case of Welch v Welch, 401 N.J. Super 438 (N.J. Super 2008) is instructive as to discovery and subpoenas in matrimonial matters. A copy is attached hereto at Ex A. It should be noted that this case was forwarded to Plaintiff's counsel. See, Atty Cert Ex D.
From Welch, pertinent to our discussion is the following:
[The] Committee has also considered whether discovery rights of matrimonial litigants should be expanded to those available in the Law Division of the Superior Court. The Committee is satisfied that some expansion is warranted to permit depositions of parties to the litigation as to matters concerning collateral relief - child custody and support, alimony, equitable distribution and related matters. However, the Committee remains firmly convinced that discovery, other than interrogatories, relating to the underlying cause of action should not be permitted except by order of the Court.
N.J. Administrative Office of the Courts, Final Report of the Supreme Court Committee on Matrimonial Litigation, July 16, 1981 (emphasis supplied). (At 444)
Here, the NJ Supreme Court Committee on matrimonial Litigation recommended in its Final Report (1981) that post-divorce discovery (including subpoena power) is done solely with the permission of the court. A permission which was not sought nor granted by plaintiff.
Further, from Welch:
... Post-judgment matrimonial motions continue to have little or no discovery absent a court order.
Discovery in family matters is governed by Rule 5:5-1, which provides discovery as a matter of right as follows:
(a) Interrogatories as to all issues in all family actions may be served by any party as of course pursuant to Rule 4:17.
(b) An interrogatory requesting financial information may be answered by reference to the case information statement required by Rule 5:5-2.
(c) Depositions of any person, excluding family members under the age of 18, and including parties or experts, as of course may be taken pursuant to Rule 4:11 et seq. and Rule 4:10-2(d)(2) as to all matters except those relating to the elements that constitute grounds for divorce.
Clearly, these three subsections apply to pretrial discovery. Rule 5:5-1(d) provides that all other discovery in family actions shall be permitted only by leave of court for good cause shown except for production of documents (Rule 4:18-1); request for admissions (Rule 4:22-1); and copies of documents referred to in pleadings (Rule 4:18-2), which shall be permitted as of right. Production of documents under Rule 4:18 is not accomplished through subpoena, but rather by written request.
Pretrial subpoena are governed by Rule 4:14-7, which permits the issuance of that process with very strict limitations.† It is important to note that Rule 4:14-7 is limited to cases in the pretrial stage of litigation and does not apply to post-judgment motions. The authority of an attorney to issue a subpoena duces tecum for purposes of discovery "is a significant one which must be exercised in good faith and in strict adherence to the Rules to
[401 N.J. Super. 445]
eliminate potential abuses." Cavallaro v. Jamco Prop. Mgmt, 334 N.J.Super. 557, 569, 760 A.2d 353 (App.Div.2000).
Egregious use of subpoena power to obtain information in an impermissible manner has been held to be a violation of the New Jersey Rules of Professional Conduct, in particular, R.P.C. 3.4(c) (fairness to opposing party and counsel) and R.P.C. 4.1 (truthfulness in statements to others). Id. at 572, 760 A.2d 353. The need for good faith with regard to subpoena power is heightened in matrimonial matters, as the issuance of unauthorized subpoena, especially in post-judgment family motion practice, presents great potential for abuse.
† Paragraph (c) was added to Rule 4:14-7 to prohibit the apparently proliferating practice of some attorneys, wholly unauthorized, to obtain documentary discovery from non-parties, unilaterally and without notice to other parties, by the simple expedient of issuing a subpoena. Pressler, Current N.J. Court Rules, comment 3.1 on Rule 4:14-7(c)(Gann 2007).
In the instant matter, Plaintiff already had supplied interrogatories and notices to produce with the Court's permission (See Ex B Atty Cert) and as allowed under the Rules: "Production of documents under Rule 4:18 is not accomplished through subpoena, but rather by written request." In addition, as seen in the footnote †, Rule 4:14-7 was added for the specific purpose of thwarting plaintiff's very actions in this case!
Any information sought in the subpoenas is duplicative to what is already sought via interrogatories and notices to produce. Plaintiff's use of a subpoena, when it is clearly not allowed under the Rules, and is further is a gross abuse of power in violation of the R.P.Cs, should not be countenanced by this Court.