Unfortunately, sometimes disputes arise as to where and when depositions should be taken. Most (possibly all) Judges hate those kinds of disputes. Discovery disputes are best resolved amongst capable attorneys by way of reasonable compromise. That principal was articulated by the New Jersey Supreme Court in Gero v. Culter, 66 N.J. 443, 446 (1975) which held “experienced trial lawyers work out among themselves every day of the week, problems of scheduling and expenses and the like in connection with depositions rather than consume valuable court time to resolve any differences. That informal approach is not only highly desirable; it is probably indispensible to the continued efficient functioning of our judicial system.”
In Ferrer v. Stahlwek Annahutte Max Aicher GMNH Co., KG, 2014 N.J. Lexis 1882 (Ch. Div. 2014), Bergen County, New Jersey Chancery Judge Doyne addressed a discovery dispute which could not be resolved by counsel. The dispute arose when Plaintiff’s counsel sought to take the depositions of three defendants who all reside in Germany. The German defendants’ counsel refused to produce them in New Jersey. Rather, he offered to produce them in Germany.
New Jersey Court Rule 4:14-2, provides that a deposition is to occur at a time and place “reasonably convenient for all parties.” If a party disagrees with the time and place of a deposition they should not simply fail to appear. Rather, the Court rules require that they bring an application seeking a protective order. See Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:14-2.
Judge Doyne, in addressing this interesting discovery dispute, balanced the burden along with the economic and practical aspects of the location of the deposition. The Court considered the fact that the German witnesses all came to New Jersey from time to time, their company’s headquarters was in New Jersey, they were parties to the litigation and asserted third-party claims against others when he held that the depositions should take place in New Jersey.
