David:
Thank you for the response. I tend to agree with you, but given the ethical implications, I wanted to hear input from more experienced practitioners. I'll explain my thinking, with my apologies in advance for typing out a wall of text:
Rule 5:5-1 sets out the basic discovery guidelines in the Family Part, but it applies to all family actions "except for summary actions." Rule 5:5-7(c) states that non-dissolutions actions "are presumed to be summary and non-complex," which takes them out of the context of Rule 5:5-1 and left me a little confused. Nevertheless, Rule 5:5-7(c) also permits a request to designate an FD matter as complex "at the first hearing following the filing of a non-dissolution application," which is to be granted "only on a specific finding that discovery, expert evaluations, extended trial time or another material complexity requires such an assignment." If designated complex, the Court "shall enter an order fixing a schedule for discovery...."
Nothing in these rules specifically prohibits the issuance of subpoenas, but it strongly implies that "discovery," whatever that means, is not permitted in an FD matter unless it's deemed complex. I'm left asking whether a trial subpoena constitutes discovery.
I think a non-trial subpoena (is subpoena duces tecum the right designation?) constitutes discovery under the Rules and would, therefore, be prohibited. Under Rule 4:14-7(c), we can only issue a subpoena "commanding a person to produce evidence for discovery purposes" if the subpoena simultaneously commands appearance at a deposition. A deposition, at least in my arbitrary opinion, seems to clearly constitute "discovery," and I would be extremely reluctant to attempt to compel a deposition in advance of an FD action without specific permission from the Court. For that same reason, I would be extremely reluctant to issue a discovery-related subpoena.
A trial subpoena does not need to compel appearance at a deposition. Therefore, again in my arbitrary opinion, it does not seem to constitute "discovery" under the Rules and should be allowed even without specific permission from the Court. Also, from a practical standpoint, discovery is generally disallowed in DV actions, but I see trial subpoenas issued in in advance of FRO hearings all the time.
Am I completely off in the weeds and missing the point here?
Very truly yours,
Andrew
---
ANDREW M. SHAW, ESQ.
Divorce & Family Attorney
DeTommaso Law Group, LLC
73 Grove Street | Somerville, NJ 08876
t: 908.595.0340 | f: 908.595.0343
www.DeTommasoLawGroup.com
This message is a confidential communication for the exclusive use of the intended recipient. If you are not the intended recipient, please notify me immediately and erase this message.
If you are not a client of the DeTommaso Law Group, this message is neither intended to constitute legal advice nor to establish an attorney-client relationship. If you have not signed a retainer agreement with this firm and fulfilled the conditions thereof, we are not your attorneys and we do not represent you in any capacity.